International Law Outline:
Prof. Bennoune
I. Sources & Methods of International Law
A. Nature and History of International Law
A hundred years ago, a student would have called it the ‘law of nations’. And, indeed it was: States were
regarded as the only legitimate int’l actors, the only entities capable of exercising int’l rights and duties. But
in the 20th Century, States ceased to be the sole subjects of int’l legal rules. This is certainly one of the most
significant developments in this area of law, for it makes possible the application of norms of conduct to a
wide range of individuals, institutions, and businesses. In short, it had ‘democratized’ law for int’l relations
and opened vast vistas of practice opportunities for legal advisors around the world. Int’l law is: i) the
normative expression of a political system; ii) the product of its particular ‘society’, it’s political system; a
construct of norms, standards, principles, institutions, and procedures; iii) about harnessing power (political
or otherwise). Purpose is: to establish and maintain order and enhance reliable expectations, to protect
‘persons’, their property and other interests, to further other values. Constituency is: states, institutions,
individuals, businesses, etc. But states remain ‘basic constituent entities’ and int’l law continues to be
described and characterized as the law of ‘the state system’ or ‘inter-state law’, long ago renamed ‘int’l
law’. Requisites are/were: Int’l law has never flourished in times of anarchy nor, for that matter, in times
of hegemony. The ideal environment for the development of int’l law have been times of multi-polar int’l
relations, where a number of states (which themselves have strong internal institutions and a profound selfawareness/sense of nationalism) have competed and cooperated in a particular part of the world. The birth
of int’l law is often given as 1648 or the end of the 30 Years War, which culminated in the Treaty of
Westphalia. The Treaty was also the birthplace of the notion of:
Sovereignty: the idea that states are autonomous and independent, and accountable only to the whim
of their rulers, or (in what was then the exceptional case) the popular will of the people. States thus
owed no allegiance to a higher authority – not to god, a moral order, or an ideological ideal. States
answered to nothing but themselves and to the extent that int’l law existed it was only because states
had specifically consented to be bound by such rules; sovereignty is understood to have impose
certain kinds of limits on int’l law; Pros – reflects the local will, self-determination, and
independence; Cons – hyper-nationalism
Corfu Channel Case/U.K. v. Albania (p. 4): “This notion has evolved, and we must not
adopt a conception of it which will be in harmony with the new conditions of social life. We
can no longer regard sovereignty as an absolute and individual right of every state, as used
to be done under the old law founded on the individualist regime, according to which states
were only bond by the rules, which they had accepted. Today, owing to social
interdependence and to the predominance of the general interest, the states are bound by
many ruled which have not been ordered by their will. The sovereignty of states has no
become an institution, an int’l social function of a psychological character, which has to
be exercises in accordance with the new int’l law.”
New Substantive Rules of Int’l Conduct & New Procedures of Dispute Settlement between Int’l
Actors: almost always on the coattails of war; it thus appeared that int’l law was the stepchild of
war and destruction, offering a utopian hope of order and moral renewal.
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Two Schools on Int’l Law: collision between the two at the height of slavery debate
Naturalists - Hugo de Groot (aka “Grotius” aka “the father of int’l law”) who wrote On the Laws of
War and Peace – a ‘common law’ of states backed up by religious and philosophical principles of
good faith and good will between nations and people; (What we should do/ethics)
Positivists – Emmerich de Vattel (had a greater influence than Groot) who wrote The Law of
Nations – States are subject to no moral authority above them; reigned supreme from 1848-1919
(What we must do/law)
Treaty of Versailles and the Covenant of the League of Nations (1919): history’s first attempt at an
organization for global peace and security; was doomed from the start due to WWII and the Cold War;
established an ambitions program for codifying int’l law and systematizing the rules of int’l conduct;
established a permanent int’l judicial tribunal; was concerned with issues of significance to people, and not
just gov’ts such as: economic developments, protection of the rights of minorities, and prevention of
disease; but these were still unable to keep the peace
The U.N. System: end of war WWII (1945) spawned the system; created an organizational architecture for
the int’l community; the U.N. system has since reached out into every aspect and spectrum of human
cooperation; has placed state concerns (i.e. sovereignty and maintaining peace) side-by-side with the
principle of protecting and extending the dignity of individual human beings; at least partly premised on a
natural law notion of the inherent worth of human beings, and is manifested in the creation of rules by
which a state must treat its own citizens; cannot impose its will on any state; was founded on the
prohibition of the use or threat of force between states (Article 2(4)) so, the Security Council was not
conceived as a body that would police/enforce int’l law generally and the charter did not create institutions
to enforce int’l law, except in respect of the prohibition on the use of force and related threats to int’l peace
and security
Article 1 of the U.N. Charter (1945 - - post WWII) – sets forth its major purposes (p. 1 of the Supp)
1) To maintain int’l peace and security
2) To develop friendly relations among nations
3) To achieve int’l co-operation in solving int’l problems of an economic, social, cultural, or
humanitarian character, and in promoting and encouraging respect for human rights and for
fundamental freedom for all
Note: Preamble contains a clause whereby the peoples of the U.N. “dedicated themselves to
practice tolerance and live together with one another as good neighbors”
The Cold War: dominated the int’l law scene particularly because both the USSR and the US had veto
power in the U.N.; int’l law took a back seat to this conflict but it flourished in the post cold war era, which
lasted about 10 years
Post 9/11 Era: where we are now; security is the central focus of the int’l law scene
Is Int’l Law Really Law at All?: debate continues since there is no ‘world government’ to legislate, judge,
and enforce int’l laws; the int’l law system is set up horizontally not vertically as is the case within nations;
law is enforced by: sanctions/economic pressure, ‘mobilization of shame’ (the classic example is S. Africa
& Apartheid; usually the role of NGO’s and int’l organizations such as the U.N.), exclusion of participation
in int’l organizations (i.e. the World Bank), national courts are occasionally used to enforce int’l law;
emergence of int’l courts that directly enforce int’l law upon individuals; anyway, most of int’l law is just a
codification of existing mores; Effect: int’l is mostly successful; it affects most facets of our lives (i.e.
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world trade, security, travel (which includes entering state B but also the actual trip to get there),
international mail, etc.; hard part is building a coherent law in the face of diversity (i.e. race, religion,
gender, economic systems) and different legal systems
In the U.S.: per Restatement 3rd on Foreign Relations Law of the U.S. Part I, Chapter I, “int’l law is
like other law, promoting order, guiding, restraining, regulated behavior. States, the principal
addressees of int’l law, treated is as law, consider themselves bound by it, attend to it with a sense
of legal obligation and with concern for the consequences of violation…It is part of the law of the
U.S., respected by presidents and congresses, and by the states and given effect by the courts.”
Responses to Objections to Int’l Law Based on Lack of Enforcement Mechanisms (p. 23):
1) There is much more voluntary compliance with int’l law than the critics would like to
acknowledge; if we understand the forces that motivate voluntary compliance, then perhaps we
can improve the content of the rules, or improve the system for making rules, so that a greater
portion of the system will exert a greater pull towards compliance
2) There are more sanctions for disobedience than is generally realized, although some of those
sanctions are relatively soft; the force of public opinion and the ‘mobilization of shame’ are not
trivial kids of enforcement mechanisms; also NGO’s effectively bring the glare of publicity on
violations of int’l law, to mobilize public pressure for compliance
3) There are more coercive sanctions for disobedience than the critics would admit, although
those sanctions are largely decentralized and non-forcible; i.e. economic sanctions, suspension
or termination of treaties, etc.
4) There may be non-forcible remedies available in national courts; i.e. a victim state might use
its own courts or other domestic tribunals to adjudicate claims of its national against the
breaching state; alternatively, it may be possible to invoke judicial remedies in 3rd party
countries for violation of int’l obligations
5) There are some forcible measures which provide even stronger forms of compulsion; if one
state violates the rule prohibiting force against another’s territorial integrity or political
independence, then the victim state can respond with individual or collective self-defense
6) There are embryonic centralized enforcement mechanisms, both forcible and non-forcible; the
primary source of these is Chapter VII of the U.N. Charter; i.e. collective economic sanctions,
the use of multilateral military force for enforcement purposes, etc.
7) Some centralized organs now exist for the enforcement of int’l criminal law against
individuals; the ad hoc International Criminal Tribunals have been created through the authority
of the Security Council under Chapter VII; substantial progress has been made toward the
establishment of a standing international criminal court
8) The int’l system is currently undergoing significant changes that could substantially transform
the effectiveness of coercive enforcement
The most important norm of 20th Century int’l law: the prohibition of the use or threat of force between states - Article 2(4) of the U.N. Charter
B. Sources and Evidence of International Law
Sources and Evidence of Int’l Law:
1) A rule of int’l law is one that has been accepted as such by the int’l community of states
a. In the form of customary law
b. By int’l agreement
c. Or by derivation from general principles common to the major legal systems of the world
2) Customary int’l law results from a general and consistent practice of states followed by them from a sense
of legal obligation
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3) Int’l agreements create law for the states parties thereto and may lead to the creation of customary int’l
law when such agreements are intended for adherence by states generally and are in fact widely accepted
4) General principles common to the major legal systems, even if not incorporated or reflected in customary
law or int’l agreement, may be invoked as supplementary rules of int’l law where appropriate
Where do we look to find the rules of international law on any given point?
i)
Municipal law: domestic law of other countries (term used in international context)
ii)
Common law
iii)
Legislation: statutes, constitutions, etc.
Note: Number of sources makes this a complicated area of int’l law
Restatement 3rd §102 (p. 56): goes to international law but is a U.S. statement; Article 38 below is the actual
‘source of sources’
Statute of the Int’l Court of Justice - Article 38 (p.56) ****KNOW THIS****
1. The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the
parties agree thereto.
Ex Aequo et bono: according to what is equitable and good on the merits of the case - - equity
rather than points of law
Notes: if you learn nothing else in this class, for the love of gawd know Article 38; it gives no
express hierarchy but treaties are placed first in the text because they are express agreements but in
actuality both treaties and custom have the same weight (with priority given to what was set up later
in time); Summary = tells us about the identity of the sources of international law and that there are
different ones
Voluntarism: is the classic doctrine of state sovereignty applied to the formation of int’l law; it holds that int’l legal
rules emanate exclusively from the free will of states as expressed in conventions or by usages generally accepted
at law; supporters emphasize its necessity for a heterogeneous pluralistic world society and the importance of
maintaining a clear distinction between existing law (lex lata) and law in formation (les ferenda)
Positivism: emphasizes the obligatory nature of legal norms and the fixed authoritative character of the formal
sources; it also tends to consider that to be ‘law’, the int’l norm must be capable, in principle, of application by a
judicial body
Positivist voluntarism: means that states are at once the creators and addressees of the norms of int’l law and that
there can be no question today, any more than yesterday, of some ‘int’l democracy’ in which a majority or
representative proportion of states is considered to speak in the name of all and thus be entitled to impose its will
on other states; absent voluntarism, int’l law would no longer be performing its function
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Do we need new sources? Does it have to be enumerated in article 38 to have any meaning?
Pros and cons of expanding sources: Progressive development but if you expand, you’ll have legitimacy problem
of having too many sources.
Primary Sources: roughly as a practical matter this is the order in which you approach an issue
A. Custom: not clearly written down or clearly agreed to internationally; often referred to as a
‘mysterious phenomenon’; two basic elements we need to establish to say that a customary
international law exists/Test: 1) general and actual practice of it (widespread preferred) – objective
test [legislation; official connotations – things done at official governmental level and expressed
officially] AND 2) general acceptance of it as a legal obligation (aka opinio juris) – subjective test;
sometimes it is held that only the first prong is necessary however, as a practical matter, you really
do need to satisfy both
Hilton v. Guyot (p. 65): The extent to which the United States, or any state, honors the
judicial decrees of foreign nations is a matter of choice, governed by "the comity of
nations." Comity "is neither a matter of absolute obligation, on the one hand, nor of mere
courtesy and good will, upon the other." United States courts generally recognize foreign
judgments and decrees unless enforcement would be prejudicial or contrary to the
country's interests.
The Paquete Habana (p. 62): an incredibly important foundational case for U.S. Int’l
Attorneys; what court is this and how did this question of customary int’l law come up?:
U.S. Supreme Court in 1900, context is the Spanish American War, foreign nat’ls going to
u.s. courts to challenge u.s. confiscation/impounding of their boats/property; court says –
seizure was unlawful under customary int’l law (they were willing to look at that law b/c
int’l law is part of the federal common law & there was no controlling treaty in place at the
time); see Hilton v. Guyot; how does he find an int’l customary law to justify his ruling that
such seizures is wrong = a history of leaving ships alone during times of war, especially
civilian ships; he actually looks at, previous wars and agreements during them, judicial
decisions during other times of war, national laws in various countries, executive and
monarchical degrees in history, acts of military commanders, and judgments of national
courts; looks at mostly European, ‘civilized’ countries (really just means England and
France); Note: today ‘civilized’ mean everyone with an organized national government –
dropped the racist/time dated connotations/limitations; often referred to as one of the
greatest upsets in American jurisprudence b/c foreign nat’ls were able to use the U.S. court
against U.S. parties; p. 66, 1st partial paragraph, “no civilized nation….”;
The Case of the S.S. Lotus (France v. Turkey) (p. 68): which court are we in? permanent
court of international justice – which is a construct of the league of nations (aka PCIJ – first
institution of its kind, very active during the period, won some and lost some); year is 1927;
CIL comes up collision b/w French and Turkish ships; absent an international law on the
matter, CIL is resorted to; PCIJ agrees with turkey and says that all they have to show that
there is no CIL which prohibits exercising jurisdiction; French come up with one such law;
court rejects this b/c they don’t buy that the rule the French are citing to actually exists/is
customarily practiced because that practice only went to one ship crashing into non-ships
and only went to French ships = not applicable here; also there was another practice in
France which suggested concurrent jurisdiction; so, France loses; important classical rule
here: that which is not prohibited to states is deemed permitted
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Legality of the Threat or use of Nuclear Weapons (p. 77): most important international
comment to date; this case was really pushed by non-legal parties (not gov’ts); how does the
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question of CIL come up here?: nuclear weapons had only been used once = no custom; not
all states have nuclear capabilities = no custom; Issue: is the threat or use of nukes ever
permitted (implicitly then ever forbidden) under int’l law?; court looks at int’l treaties but
none of them fully answer the question here, general assembly resolutions and the states
who have pulled together to say they prohibit the use of nukes, which the courts find can be
evidence of CIL but are not here b/c the ones sited were designed to have international
effect; court ultimately decides – you can’t use a threat that fails to meet Hilton v. Guyot but
you can us it if it is an issue of survival or humanitarian law (you can’t use nukes when it is
against the law to do so – PCIJ, CIL, and treaties; but we can’t say that it would always be
unlawful); criticism by Higgins of court here is that they turned it into a non liquet = a legal
question to which there is no answer, when they didn’t have to and really should have done
the interpretive work to figure this one out. Note: the court does say that there exists an
obligation to pursue negotiations in good faith leading up to a nuke threat and/or use.
 There are treaties like the Antarctica Treaty of 1959 the Test-Ban Treaty in 1963 that
do completely legally prohibit the use of nuclear weapons; these treaties however do
not add up to a prohibition because there are exceptions to the prohibitions;
 Customary law: what is the problem with this source of law; nuclear weapons have
only been used once; since then never been used, this isn’t a custom because
circumstances may arise again where nuclear weapons may be used; there are
assumption we cannot make; states do not practice deterrence not because of legal
requirement but rather because of fear; the need has not arisen; why states follow
deterrence is not clear
 General assembly resolutions are not binding; what is the content of the resolution
and the conditions of the adoption of that resolution; if these are voted for by all
members of the UN then it can’t really show custom
 The use of nuclear weapons would be in direct conflict with the rules of armed
conflict; when nuclear weapons are used civilians are not protected or excluded, this
violates int’l law rules on warfare
 Possession itself is in conflict with non-usage; don’t want to use them, don’t need to
have them
 There are no parties in this case, it’s an advisory opinion; the jurisdiction being used
is advisory jurisdiction; it’s not solving a dispute between two states; it’s answering a
question posed to it by an authorized body to the UN
 Justice Weeramantry is from Sri Lanka, and his nation would be dramatically
affected by a nuclear war between India and Pakistan
 Is the outcome of this case useful? The court did the only thing it could under the
circumstances; it tried to maintain credibility when faced with so many conflicting
ideas of the use of nuclear weapons
Opinio Juris sive necessitatis: (“opinion that an acct is necessary by rule of law”)The principle that
for a country’s conduct to rise to the level of int’l customary law, it must be shown that the conduct
stems from the country’s belief that int’l law (rather than a moral obligation) mandates the conduct
North Sea Continental Shelf Cases ICJ 1969: 92
The dispute arises over who owns a greater portion of the continental shelf; Germany v.
Denmark and Netherlands; has this treaty become a custom of intl. law?
• When can treaty law provision rise to level of custom that would bind non-signatory state?
The treaty can give rise to a customary norm, but there are a range of issues- the number of
ratifications; the amount of practice in support of a treaty; the nature of the provision (is it
absolute? Is reservation inherent in it?)
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• This case sets the “bar” high for the allowance of customary rules; why? Because it can
bind states that do not agree to the custom so the court must be sure of what it allows
becoming a customary norm; This case was resolved by “equitable” principles to be fair to
all states involved
Case Concerning Military and Paramilitary Activities In and Against Nicaragua ICJ
1986: 96
Nicaragua claims unlawful military action by the U.S.; this case goes thru an analysis of
customary intl. law; the body of customary norms is separate from the body of treaty law;
the norms prohibiting the use of force here are called jus cogens ((“compelling law”) a
mandatory norm of general international law from which no two or more national may
except themselves or release on another; the fundamental peremptory norms, can only be
replaced by another norm of the same level)
• Court does not just rely on treaty principles for use of force but also relies on a separate
legal basis- co-existing custom principles for non-use of force and the attribute referred to
expresses an opinio juris respecting such rule.
• What is a Persistent Objector? A state may escape the effect of customary rules of law if
the State has persistently, promptly and consistently object to the application of that rule
from its inception. If a custom becomes established as a general rule of intl. law, it binds all
States which did not oppose it even if they themselves had not been active in its formation;
to NOT be bound by customary norm, a state must expressly oppose it, except jus cogens
(example: rule against apartheid); what about new-born states being bound to pre-existing
norms; these states begin with a clean slate (free from all treaties and customs).
B. Treaties:
Conventions (written documents); Treaties
• No express hierarchy in Article 38 but treaties are placed first in the text because they are express
agreements but in actuality both treaties and custom have the same weight (priority to the later in
time); some say the treaty only binds the parties in it.
• Treaty law: International convention law: a written agreement between states governed by
international law. Some treaties are about obligations between specific states and some treaties are
broad law making treaty. To bind non-treaty states it must rise to the level of customary
international law. Broad source of law. Specific rule prevails over general rule. Norm of customary
law can get developed to rise to the level of treaty.
• Codification and Progressive development:
Progressive Development: is about creating new treaty law that comes about with time that
still requires ratification; states changing the rule; deciding on a new rule; breaking with
custom, whereas
Codification: is already generally accepted and a more precise systemization of rules
(supported by precedent and past customs); putting down on paper what previously existed;
enshrining; codification is less controversial
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• Intl. Law Commission is a body assigned the task of promoting both progressive development and
codification of the law; they draft texts for the UN that are to be negotiated by states
• Treaty-making goes on all the time and is vibrant. Live source of international law.
• Bilateral treaties are clearly a source of law as to the two contracting parties. Bilateral treaties are
not usually considered a source of general international law when the reason for concluding them
was to create an international obligation that did not exist under general international law.
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Extradition treaties fall into the category of contract-law. Absent a bilateral agreement, general
international law would not usually require the extradition of an alleged offender. The mere
existence of a network of bilateral extradition treaties in and of itself has no general law-creating
effect.
• Multilateral conventions with a large number of States parties may be a source of international
law, either as evidence of what these states declare the law to be, or by setting forth a new rule of
law by implication affecting all states. See Case Concerning Reservations to the Genocide
Convention.
C. General Principles of Law (aka int’l common law among civilized nations): include a rule of good
faith in int’l obligations (known as pacta sunt servanda: (“agreements must be kept”) The rule that
agreements and stipulation, esp. those contained in treaties, must be observed; see Quebec Case) and the
doctrines of necessity and self-defense; the least abstract (and more concrete) the principle, the more useful
it is, but also the more difficult it is to find a consensus among domestic legal systems (good example of
this is the principles of statue of limitations/laches or, as its known in civil law systems extinctive
prescription); recognized by civilized nations (done within the nations); ICJ will not determine presence of
GP unless it finds principles across different many systems and legal systems. Actual law, not custom.
Near universal private law rules may be indicative of principles of public international law.
General Principles of Law and Equity:
The Broad Expanse of General Principles of Law
1) The principles of municipal law “recognized by civilized nations”: Laws within many nations
that are basically transferred to the intl. level; the particular principles that are used in the intl.
level are those procedural rules that have more to do with notions of fairness; procedural
principles are more objective and thus more universal in appeal; intl. law is not a complete
system; it’s an emerging system by comparison to the old legal systems of many of the worlds
nations; intl. law needs to fill in gaps in its rules so it reaches out to laws within nations; there
must be a general acceptance before it can become customary; but there are differences between
these general principles and customs
2) General principles of law “derived from the specific nature of the intl. community”
3) Principles “intrinsic to the idea of law and basic to all legal systems”
4) Principles “valid thru all kinds of societies in relationships of hierarchy and coordination”
5) Principles of justice founded on “the very nature of man as a rational and social being”
Considerations of Equity and Humanity
Most widely used and cited principle of intl. law is that of general equity; equity defined as
consideration of fairness, reasonableness, and good faith
Diversion of Water from the Meuse (Netherlands v. Belgium) PCIJ 1937: 128
Belgium wants to build canals and the Netherlands filed this complaint because the canals
alter the flow of water of the River Meuse; principles of equity have been seen in AngloAmerican Law, Roman Law; equity has real historic routes; many states derive their civil
laws from Roman law; it is appropriate to use equity in such a case; an agreement is a
contract between two states and under contract law equity is used to judge such a case
• “He who seeks equity must do equity”; P here was not innocent had done some of the same
stuff they were beefing with Belgium about;
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Corfu Channel Case (UK v. Albania) ICJ 1949: 133
Similar to the Meuse case; Albania is exploding mines and UK naval ships are being
damaged and the ICJ invokes general principles of humanity; elementary considerations of
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humanity even more exacting in peace than in war; treaty rule (Hague Convention) not
applicable cuz it’s not a time of war; thus, General principle of elementary considerations of
humanity requires Albania to notify countries that may pass through its waters.
Secondary Sources: Article 59 – Statute of the Int’l Court of Justice p. 37 in Supp; very often used as ways
to interpret the primary sources
A. Judicial Decisions: (surprising to U.S. attorneys but done this way b/c not all countries in the
world have judicial systems where our system/jurisprudence is as important/even exists – civil law
countries are very different); only binding on the parties in the case; applies to municipal decisions
and ICJ’s decisions
- Enforcement is a separate problem.
- ICJ’s decisions are not binding on future ICJ to the extent of stare decisis but the reality is
that successive ICJ courts follow older ICJ cases and distinguish carefully. Highly
persuasive.
- Other judicial decisions aren’t as persuasive as ICJ
Statute of the Int’l Court of Justice – Chapter II Article 38(d) – p. 34 in Supp: The Court,
whose function is to decide in accordance with int’l law such disputes as are submitted to it,
shall apply: Judicial decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of law; these include:
1. Decisions of the ICJ – regarded by int’l lawyers as highly persuasive on existing int’l law
2. Decisions of Intl. Arbitral Tribunals and other intl. courts
3. Decisions of Municipal Courts
B. Scholarly Writings (aka the teachings of the most highly qualified commentators):
Scholars/Judges/Professors/Associations. Never relied on to make new law but to understand
existing law. Interpretive value. Problem of national bias not reflective of international view.
Divergence of view among writers: who do you believe? Who’s right? Historically, the role of
writers was significant. Helped to create law. Kept track of international law. Its role is less
important now due to the sophistication of IL today.
C. Declarations and Resolutions: “Soft law” (Outside of Article 38)
Soft law: collectively, rules that are neither strictly binding nor completely lacking in legal
significance; guidelines, policy declarations, or codes of conduct that set standards of conduct but
are not directly enforceable (i.e. General Assembly Resoluations). Plays an important role in
international law. Soft law docs have legally binding sources. Not strictly enforceable in court but
courts may look to them to interpret law, especially resolutions of UN Economic and Social
Council. Common issuers of soft law: UN Crime Prevention Branch; UN Human Rights
Commission. Example of soft law: Beijing Declaration on women’s rights: global strategy to
advance women’s rights. Upside: ability to deal with emerging issues; allows standards to develop.
Dynamic understanding. Downside: if you’re not careful, you can undermine the law. Legitimacy is
important in international law.
General Assembly Resolutions: can be cited as int’l law, depending on who & how many
voted; 3 kinds
a. Law declarations
b. Procedural: binding effect on member states
c. Declaratory resolutions: argued to be less legal end of the spectrum.
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Filartiga v. Pena-Irala US Ct. of App. 2nd Circ. 1980: 143
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A wrongful death action brought in fed. dist. ct.; family of decedent bring suit for wrongful
death by torture in Paraguay; violates the “law of nations”; deliberate torture under the color
of official authority violated the universal rules of intl. law under the Universal Declaration
of Human Rights a 1975 UN Gen. Assembly Declaration on the Protection of all Persons
from Torture; “these are formal and solemn instruments, suitable for occasions when
principles of great and lasting importance are being enunciated”; a declaration resolution - it
is a text already followed that is purported to be followed; Is torture a violation of the law of
nations?; US court looks at resolutions and declarations as evidence of customary
international law. Court takes voting record into consideration: nature, language, voting
record (adopted without dissent). Is the resolution repealed? States reaffirming some legal
principles.
Texaco Overseas Petroleum Et al. v. Libyan Arab Republic Intl. Arbitral Award 1997: 148
Libya attempted to nationalize all the rights, interests, and property of 2 intl. oil companies
within the nation; the companies assert this is a violation of the deeds of concession granted
to them jointly by the govt.; the companies asked ICJ to appoint an arbitrator to hear the
dispute; Libya contests this arbitration asserting nationalization = act of sovereignty; the
arbitrator found in favor of the companies saying that the deeds should be given full force
and effect; refusal to recognize a UN resolution must be qualified; the resolution seeks to
create a balance between a state’s rights of sovereignty and the adaptation of that
sovereignty to intl. law, equity, and the principles of intl. cooperation; there is a resolution
that supports Libya’s view that protects sovereignty and another that tries to compel
compliance to customary intl. law; the arbitrator looks at the voting conditions in these
resolution like who voted and who abstained; the resolution that Libya is citing deals more
with the compensation that a state can allot itself in such situations; another resolution deals
with the natural resources of a nation; certain countries will/won’t vote for a certain
resolution because they have more interests around the world; Who has voted in favor or
against? Major ideological divide.
• Texaco – looked at the particulars of each resolution and decided one was binding over the other;
but the resolutions were (and are) given some weight internationally = an evolving approach
towards sources of int’l law which are debated but evolving nonetheless
-Should we make these distinctions regarding UN resolutions? Yes, certain resolutions need more
weight (i.e. jus cogens); states may or may not apply resolutions to their own domestic laws; diff.
resolutions do diff. things some being grandiose (creating new norms) some very forward looking
not just stating law, some very technical
• UN Gen. Assembly resolutions are not formally binding (not formally legislation) but these
statements have legal value; not independent source of law; often unanimously voted; there is no
other body where all states are represented equally; these resolutions fit in the gray area; the way to
understand resolutions is in relations to the 3 primary sources; they have legal value if seen as
similar to treaty law
On International Law and Municipal Law General Considerations: Intl. law is binding on the state, states are obliged to give it effect, but states make and
apply int’l law thru their gov’t and their constitutional and legal systems; it does not replace domestic laws;
obligation to int’l law is upon the state not on any particular branch of its govt. but any violation by any branch is
the responsibility of the state; every state has the duty to carry out in good-faith its obligations arising from treaties
and other sources of intl. law; regardless of what a state’s domestic law may say about international law, all that
matters to IL is whether that state is complying with IL. A state’s own law is not a valid excuse for noncompliance of international law otherwise int’l law could be totally subverted.
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Prominent Theories re: relationship between IL and Municipal Law:
Monist: regard international law and municipal law as parts of a single legal system; traditionally,
municipal law is seen as ultimately deriving its validity from international law, which stands ‘higher’ in a
hierarchy of legal norms; international law cannot be subject to domestic law, not even to constitutional
limitations; find it easier to maintain that individuals have international legal personality; (Netherlands is a
good example of this); Better chance for enforcing IL. No implementing legislation if needed to incorporate
IL into the state’s legal system.
Dualist: regard international law and municipal law as separate legal systems which operate on different
levels; international law can be applied by municipal courts only when it has been ‘transformed’ or
‘incorporated’ into municipal law; international law, as incorporated into municipal law, is subject to
constitutional limitations applicable to all domestic law, and may be repealed or emphasize the
international legal personality of states, rather than of individuals or other entities. (this is the U.S.
approach for the most part ); con = it may be harder to enforce international law with this; Preserves
localism and democracy. Implementing legislation is needed.
• Treaty entered by US is considered as part and parcel of the law of the land.
• Treaties are equivalent to legislation, and as a result can be amended and repealed.
• Role of customary international law as federal law
• Modern view: international customary law is our law; Habana
• As a matter of federalism, federal courts have jurisdiction: coherent foreign policy, one voice; balancing
international and domestic law; really irrelevant to IL. All must comply. It doesn’t absolve anyone. You still
have to abide by international law.
International Law in the Law of the United States
Restatement (3rd ) Part I, Ch.2 the Interplay of US and Intl. Law
Intl. law was part of English law and as such a part of the American Colonies; with independence it became
part of each of the 13 individual states; when the US became one state it became subject to intl. law; the
constitution declares treaties of the US to be “the supreme law of the land” and provides that cases arising
under treaties are within the Jud. Power of the US; the status of other intl. agreements and customary intl.
law is not clear; currently customary intl. law in the US is a kind of federal law, and like treaties and other
intl. agreements, it is accorded supremacy over State law
Customary Intl. Law as Federal Common Law
Treaties are addressed in our jurisprudence but what about customary intl. law? It’s not even addressed; our
Supreme Court has yet to declare that the Constitution is supreme over the law of nations and customary
intl. law; the Supreme Court did abide by the customary intl. law regarding fisheries during the
Spanish/American War (Paquete Habana); based upon the holding in this case customary intl. law is part
of US law
What if a State, while abiding by an intl. treaty, creates legislation in opposition of that treaty, BUT continues to
abide by the rules set forth in that treaty; is that legislation a violation of intl. law? Unless such a law is a violation
of jus cogens, and until the treaty is violated, the domestic legislation itself is not a violation.
Intl. laws are created by those whom we as people have elected to those positions. There must be a relationship
between the laws we follow domestically and those that are created and followed internationally.
The law of nations as US law:
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Constitutional provision “to define and punish offenses against the law of nations”
Intl Law and Agreements as law of the US - Restatement (3rd )
1) Intl. law and intl. agreements of the US are law of the US and supreme over the law of several States
2) Cases arising under intl. law or intl. agreements of the US are within the Jud. Power of the US and
subject to Constitutional and statutory limitations and requirements of justiciability are within the
jurisdiction of the federal courts
3) Courts in the US are bound to give effect to intl. law and to intl. agreements of the US except that a
“non-self-executing” agreement will not be given effect as law in the absence of necessary
implementation
4) The determination and interpretation of intl. law present federal questions and their disposition by the
US Supreme Court is conclusive for other courts in the US
US Constitution
Article II, Section 2: The President shall have Power, by and with the Advice and Consent of the Senate,
to make Treaties, provided two-thirds of the Senators present concur; Executive Agreements don’t require
Senate support
Article VI: “This Constitution, and the Laws of the US which shall be made in Pursuance thereof; and all
Treaties made or which shall be made, under the Authority of the US, shall be the supreme Law of
the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.
Restatement 3rd :An int’l agreement can’t take effect as domestic law without implementation by Congress
if the agreement would achieve what lies within the exclusive law-making power of Congress under the
Constitution; things that can’t be done via treaty without Congress:
1) Int’l agreement providing for payment of money by the U.S.
2) Int’l agreement to take the U.S. into war
3) Int’l agreement creating an int’l crime (i.e. genocide) or requiring states parties to punish certain
actions (i.e. hijacking)
4) Int’l agreement to raise revenue by itself imposing a new tax or tarriff
Treaties and the Supremacy Clause: The constitution does not expressly impose prohibitions or prescribe limits on
the Treaty power
US Approach to Treaty Law:
Self-Executing: no implementing legislation required: direct applicability; no further action needed to bring
treaty into effect; treaties that create obligations to refrain from acting are generally self-executing
Non-self executing treaty: (requires the passing of a domestic law) Requires implementing legislation. It
has no direct effect. Anything that requires congressional action. If can’t operate by itself, it’s non-self
executing. The UN charter, and in particular its human rights provisions, have been held to be non-self
executing (see case and explanation on bottom of p. 209) as they are “framed as a promise of future action
by the member nations.”; Congress may also consider whether new legislation is necessary; can depend of
whether there is already an existing law on the books as well; grander, more sweeping intl. agreements are
usually non-self executing (i.e. human rights laws)
If silent: as to its self-executing character and the intention of the U.S. is unclear, account must be taken of
any statement by the President in concluding the agreement or in submitting it to the Senate for consent or
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to the Congress as a whole for approval, and of an expression by the Senate or by Congress in dealing with
the agreement
Notes: all treaties are subject to the constitutional limitations that apply to all exercises of federal power,
principally the prohibitions of the Bill of Rights (since they have been incorporated in the 14th
Amendment); numerous statements also assert limitations on the reach and compass of the Treaty Power.
The states do not conduct foreign affairs , but they do influence them, and the extent to which they can do
so is also limited by the constitutional safeguards for individual rights
What is the Relationship between Treaties and Municipal Law??
Missouri v. Holland Sup. Ct. of US 1920: 198 - - Federalism
SC preserves integrity of the treaty over states’ rights issues. Migratory bird treaty not bound to one state therefore
no states’ right/10th amendment claim and treaty rights trump the states’ right claim.
• Classic trans-boundary problem. Only way to regulate is with trans-boundary approach. Justice Holmes.
Treaties override state’s rights: Supremacy Clause.
• Treaties entered into by the US are not subject to Constitutional scrutiny but there are checks in place with the
requirement of the 2/3 vote by the Senate.
• Pro: we’ve taken this obligation and we want others to abide.
• But in Reid v. Covert (p. 197), in human rights actions, constitution will trump treaties. A restriction on the
broad Missouri holding; where individual rights are concerned, constitution trumps treaties.
Congressional Power and the Treaty Power
Questions arise about the relations between the ‘treaty-makers’ and Congress; these relations suggest
limitation on the scope of treaty power, under modern established views of the powers of Congress, there is
little - or nothing - that is dealt with by treaty that could not also be the subject of legislation by Congress
Foster and Elam v. Neilson Sup. Ct. of US 1829: 205 - - Treaties as Law of the Land
Appellants seek to recover a tract of land in Louisiana which they claimed under a grant made by the Spanish
governor; the grant is void because it is subsequent to the transfer to France and the US of the territory in which
the land was situated; 1819 treaty between US and Spain “all the grants of land made before the 24th of Jan.
1818…shall be ratified and confirmed to the persons in possession of the lands to the same extent as if they had
remained under the dominion…”; the treaty did not ratify or confirm appellants title; in the US, treaty law =
legislative law; but when a contract imposes a particular act on one of the parties, than the legislature must execute
the contract before it can become rule; without Congressional act, the existing laws cannot be encroached
Breard v. Greene; Republic of Paraguay v. Gilmore; Sup Ct. 1998: 216
Attempted rape and capital murder trial; this citizen of Paraguay is to be executed; petitioner asserts that his
conviction violates the Vienna Convention on Consular Relations; authorities allegedly never informed him that it
was his right to contact the Paraguayan Consulate; Paraguay brought suit in Fed. Dist. Ct against certain Virginia
officials; the court held that “although treaties are recognized by our Constitution as the supreme law of the land,
that status is no less true of provisions of the constitution itself, to which rules of procedural default apply; if a
treaty and a federal statute conflict, the one last in date will control the other
As a matter of international law, US must adhere to the treaty even though as a practical matter, implementation
might be difficult and opposed.
Charming Betsy Presumption: akin to the U.S. Avoidance Canon; “an Act of Congress ought never to be construed
to violate the law of nations if any other possible construction remains”; this is a tough task since proper
interpretation of a treaty is an int’l question as to which courts of the U.S. have less leeway; the disposition to
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construe a treaty to avoid conflict with a state statute is less clear (pg. 220); sensible approach especially since
most national legal systems follow it - - allows states to reconcile domestic and international obligations
International Law in the Municipal Law of Other States: Many handle it differently in the context of their own
domestic law
- Netherlands: monists; direct application of international law and not by virtue of a transformation into
municipal law; France and Switzerland have similar doctrines
- Fed. Rep. of Germany: “the general rules of public intl. law shall be an integral part of federal law. They
shall take precedence over the laws and shall directly create rights and duties for the inhabitants of the
federal territory.”
- Italy: “conforms with the generally recognized principles of intl. law.”
- Austria: “The generally recognized principles of intl. law are valid parts of the Federal law.”
- Greece: “The generally acknowledge rules of intl. law, as well as intl. conventions as of the time they are
sanctioned by law and become operative according to the conditions therein, shall be an integral part of
domestic Greek law and shall prevail over any contrary provision of the law.”
- It doesn’t matter how they seek to arrive at the end so long as they comply with their int’l obligations
II. Subjects & Objects of International Law
A. States
1. Intro
An International Legal Person (ILP) –
1) a person or entity capable of possessing international rights and duties under int’l law and endowed
with the capacity to take certain types of action on the international plane
2) States are ILPs, but so are individuals, corporations, and other juridicial entities, so long as they are
accorded the above rights under customary int’l law or an int’l agreement
In the beginning it was generally held that only fully sovereign states could be int’l legal persons. Over time,
individuals, corporations, NGO’s, etc. have come into int’l legal personhood via customary international law or
international agreement. However, states are still the core actors having the greatest number of legal rights and
duties, they enjoy a sort of preeminent int’l person status; States don’t exist until they have and evolve into
sovereign entities.
Henkin writes (p. 5): as applied to a state, elements long identified with ‘sovereignty’ are inevitably only
metaphors however, some of them do constitute essential characteristics and indicia of statehood today,
these include principally: independence, equality, autonomy, ‘personhood’, territorial authority, integrity
and inviolability, impermeability, and ‘privacy’; Henkin hates the word and its use in int’l law
What is a state - - per the U.S.? Restatement 3rd, §201 (p. 250): it is an entity 1) that has a defined territory
a. but does not cease to be a state if occupied by a foreign power
b. and does not cease to exist when a previously functioning gov’t becomes ineffective or defunct
c. no minimum amount of space required
2) a permanent population
a. but no minimum number has been set
b. a significant number of ‘permanent’ inhabitants will suffice even if large numbers of nomads
move in and out of the territory
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c. a new state does not have to extend nationality to its population as a condition of statehood
3) which is under the control of its own government
a. a new state formed by secession from a metropolitan state will have to demonstrate substantial
independence, both formal and real, before it will be regarded as definitively created
b. where a state is created by grant of power from the former sovereign, independence is treated as
a predominantly formal criterion
4) and engages in, or has the capacity to engage in, formal relations with other such entities
a. must have ‘competence, within its own constitutional system, to conduct international relations
with other states, as well as the political, technical, and financial capabilities to do so.
i. A state that voluntarily turns over these rights/responsibilities to another state does not
cease to be a state
For the U.S. Secretary of State Baker added the following: so long as the state adheres to
1) determining the future of the country peacefully and democratically, consistent with the Conference on
Security and Cooperation in Europe (CSCE) principles (who says democracy is best?)
2) respect for all existing borders, both internal and external, and change to those borders only through
peaceful and consensual means (do we have this?)
3) support for democracy and the rule of law, emphasizing the key role of elections in the democratic
process (questionable here)
4) safeguarding human rights, based on full respect for the individual and including equal treatment of
minorities (do we have this?)
5) respect for international law and obligations, especially adherence to the Helsinki Final Act and the
Charter of Paris
The Determination of Statehood Int’lly – Convention of Rights and Duties of States – Article 1 (p. 44 of the
supplement); 4 criteria/conditions of statehood for the purposes of int’l law:
1. Defined Territory
- No need for completely defined or undisputed territories; (i.e. Israel)
- Consistency in the area governed
- Sovereignty over a specific territorial area is essential
2. Permanent population
- Formally, there is no lower limit to meet the criteria (i.e. Nauru = 8,000); Liechtenstein = 28,000)
- There must be some population based in the territory, in other words not just nomadic bands of
people in and out of the place
3. Government
- Some type of stable and effective authority is required; it must be strong enough to assert itself
without the assistance of foreign troops. It is much easier for an entity to obtain statehood than it is
to lose it (i.e. Somalia, Burundi, Rwanda, Lebanon = no stable authority but their state status hasn’t
been revoked)
- There is nothing that tells us what this means, there is no real definition; the working definition is:
a stable organization/public authorities with enough clout to do what is necessary and maintain
control (in Finland the govt. was not recognized until the civil war was over)
4. International capacity/Independence
- Does this government really called the shots for this state?
- Capacity to conduct intl. relations; state must have competence within its own constitution,
financial/technical/political means
-It is possible for a state to convey its foreign policy power to another state and still retains
independence (not vitiated).
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E.U. added even more (p. 259) and are stricter than most other standards; book says the new conditions it added
were hand tailored to fit their specific interests.
The U.S. picks and chooses who to recognize and how much to recognize them to suit its own interests too (p. 260
– 261)
Capacities, Rights, and Duties of States include:
1) sovereign over its territory and general authority over its nationals
2) status as a legal person, with capacity to own, acquire, and transfer property, to make contracts and
enter into international agreements to become a member of international organizations, and to pursue,
and be subject to, legal remedies
3) capacity to join with other states to make international law, as customary law or by international
agreement
Question of statehood comes up in the event of:
1) break-up of an existing state into a number of states
2) secession or attempted secession by part of a territory of an existing state
3) cases in which foreign control is exercises over the affairs of a state, whether by treaty, unilateral
imposition or delegation of authority
4) cases in which states have merged or formed a union
5) claims by constituents of a union or federation to the attributes of statehood
6) territorial or non-territorial communicates which have a special int’l status by virtue of treaty or
customary law and which claim statehood for certain purposes
7) when an entity whose status is in controversy seeks admission or the right of participation in an int’l
body open to states alone
8) when parties seek to become parties to multilateral treaties or agreements open only to states
9) for purposes of establishing bi-lateral relationships
10) in national courts, particularly in respect of entities which have not been recognized as states by the
executive branch (for purposes of determining claims to property, issues of nationality, the right to sue,
the validity of official act, immunity from suit, and various other questions linked to statehood)
Statehood does not necessarily = the government of that state
Two Views on Recognition of Statehood:
1) Constitutive: the act of recognition by other states confers int’l personality on an entity purporting to be
a state; in effect, the other states by their recognition create the new state
2) Declaratory: existence or disappearance of a state is a question of fact and whether those facts meet the
criteria for statehood established by int’l law; primary function of recognition is to acknowledge the
fact of the state’s political existence and to declare the recognizing state’s willingness to treat the entity
as an int’l person, with the full rights and obligations that go along with that (most authority and
practice lies here)
A Duty to Recognize?
Acts of recognition or refusals to recognize may have a significant and at times decisive role in determining
controversial situations. An entity that meets the conditions of statehood cannot, because of the lack of
recognition, be denied it’s rights or escape its obligations. So, the theoretical gap between these two
theories is rather less in practice than in theory. A state is not req’d to accord formal recognition to any
other state, but is req’d to treat as a state an entity that meets the requirements of statehood. However, a
duty not to recognize may be applicable when an entity does not yet satisfy the criteria for statehood under
int’l law or when it has come into existence in violation of fundamental principles of int’l law.
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Premature Recognition as Unlawful Intervention: If the parent state has not yet recognized the new state, but other
nations have already, complaints will arise (i.e. Rhodesia claims to be a state but its parent nation the UK sees this
as a rebellion; this is an illegal state because it is as the UN Security Council calls it a “racist settler minority”)
Self Determination of ‘Peoples’ – “the right of the people in non-self-governing territories (i.e. colonies) to freely
determine their political status” (p. 269) ; There was no coherent theory of self-determination after WWI, nor was
there a legal expression of the concept in the Covenant of the League of Nations; in 1945 via the U.N. Charter,
self-determination was embraced as a ‘principle’, and in due course became accepted as a principle of customary
as well as treaty law. Was codified in many other treaties (p. 269) too. In the eyes of some jurist and judges, the
principle of self-determination is not only a binding rule of int’l law, but even enjoys the status of a peremptory
norm (a norm that is so fundamental that a state cannot contravene it); it is widely held that the political future of a
colonial or similar non-independent territory should be decided in accord with the wishes of the inhabitants; selfdetermination is very much about internal democracy, rights of minorities; the end of colonialism has opened up a
lot of questions on this topic (i.e. Western Sahara)
See the UN Friendly Relations Declaration on p. 270 – General Assembly Resolution on the Principle of
Equal Rights and Self-Determination of Peoples
- Cornerstone of General Assembly’s decolonization efforts.
- It was not a clearly established part of IL until the UN Charter where SD is made a clear
international principle.
On Separatist Movements Reference Re: Secession of Quebec: 274
- Advisory opinion regarding self-determination in relation to separatist movements.
- SD doesn’t mean that that Quebec can unilaterally secede.
- Rule: a people’s right to self-determination cannot be said to ground a right to unilateral secession. Doesn’t
automatically afford the right.
- Issue: is there a right to self-determination under international law that would give the National Assembly,
legislature or government of Quebec the right to effect Quebec’s unilateral secession?
- Holding: the international law principle of self-determination has evolved within a framework of respect for the
territorial integrity of existing states. The right to external self-determination has only been granted to peoples
under colonial rule or foreign occupation, based on the assumption that both are entities inherently distinct from
the colonialist power and the occupant power. External self-determination has also been bestowed upon peoples
totally frustrated in their efforts to exercise internally their rights to self-determination. In this case, Quebec is
neither a colony nor a foreign-occupied land. Further, the people of Quebec have not been victims of attacks on
their physical existence or integrity or of massive human rights violations. Quebecers are equitably represented in
legislative, executive and judicial institutions; occupy prominent positions within the government of Canada; and
enjoy the freedom to pursue their political, economic, social and cultural development. Their interests are wellrepresented.
- This case leaves open the possibility that the international law right of self-determination could entail secession
as a last resort in cases of especially severe oppression in which other channels for exercising internal selfdetermination had been totally frustrated.
Discussion of Revolution v. Legal Secession:
1) “Successful revolution begets its own legality” (p. 280); legality follows and does not precede a
successful revolution; if done this way though, it cannot be said that the new state was won under color
of legal right/according to int’l law
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2) Principle of effectivity (p. 280): an illegal act may eventually acquire legal status if, as a matter of
empirical fact, it is recognized on the international plane. This does fly sometimes but this is no reason
to pre-approve such acts
Cession: when one state gives away land
Secession: when an area breaks away from one state
Uti possedetis: we preserve the existing colonial orders, self-determination does not allow secession
On Recognition of Statehood Recognition from the U.S. (p. 292): Dan Webster puts our nation’s position as one of acceptance/cooperation with
all kinds of governments; the way it’s really been though is:
1) recognition of gov’ts was not a matter of int’l obligation but could be granted or withheld at will to
further national policy
2) other times, policy has been to recognize the gov’t in power despite distaste for the way it acceded to
power, or for its ideology, policies, or personnel
3) in recent years, practice has been to de-emphasize and avoid the use of recognition in cases of changes
of gov’ts and to concern ourselves with the question of whether we wish to have diplomatic relations
with the gov’t
Difference b/w diplomatic relations and recognition:
1) recognition = often effected by sending and receiving diplomatic reps, but one gov’t may recognize
another yet refrain from assuming diplo relations with it
2) breaking off of diplo relations does not mean de-recognition
3) a state may be recognized but not engaged diplo because
a. state A has no interests there to warrant it
b. to express disapproval of state B
c. state A may lack sufficient personnel to do so
d. it is unsafe to have dips in state B
4) should establish diplo if possible, you’re just giving up opportunity to influence state B
Criteria of Recognition of Governments:
1. Whether the new regime is in fact in control of the government
2. Constitutional legitimacy
3. Must be able and willing to carry out the obligations of membership
4. Must be able to employ the resources and direct the people of the state in fulfillment of the obligations of
membership.
5. Whether the new government exercises effective authority within the territory of the State and is
habitually obeyed by the bulk of the population.
The Two Governments of China (p. 295): the first case in which two rival gov’ts existed in
the same state; Issue: what test should be used to determine recognition? Held: a principle of
numerical preponderance is inappropriate and legally incorrect; does the new government
exercise effective authority within the territory of the state and is their authority habitually
obeyed by the bulk of the population (assessed on a case by case basis)
Notes: this leaves the door for value judgments open; value judgments based on the
national interest of the proposed recognizer, human rights interests, etc.
The Estrada Doctrine (p. 297): adopted by Mexico; generally understood to mean that recognition of gov’ts is
unnecessary once the state has been recognized by another state.
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The U.K. (and many others have followed suit): ‘we have concluded that there are practical advantages in
following the policy in not according recognition to gov’ts. We shall continue to decide the nature of our
dealings with regimes, which come to power unconstitutionally in the light of our assessment of whether
they are able themselves to exercise effective control of the territory of the state concerned and seem likely
to do so.
Acquisition of Territorial Sovereignty: Legal Claims to TS in IL
Must have defined territory to be a state; sovereignty over a territory; many disputes regarding sovereignty over a
territory still exist today
1. Prescription - The process of acquiring title to property by reason of uninterrupted possession of
specified duration. (Continual peaceful possession/occupation/prescription – also a pre-req of
statehood); The acquisition of an easement in or on another’s property as a result of continuous use for
the statutory period: TEST =
1. The possession of the state must be exercised in the name of the sovereign (a titre de
souverain)
2. The possession must be peaceful and uninterrupted
3. The possession must be public (for all to know about it)
4. The possession must endure for a certain length of time
2. Force/Conquest (not legit anymore) – we don’t go back to invalidate ones that were attained this way
previously but this rule is applied prospectively
Stimson Doctrine of 1932 & U.N. Charter via the Friendly Relations Declaration of 1970: a
policy not to recognize the validity of territorial acquisitions brought about by force
3. Treaty/Cession – one country gives the territory to another
4. Discovery (doesn’t work anymore)
5. Contiguity/Accretion/Avulsion: geographically based method of acquiring sovereignty (was close
proximity; no longer valid)
Island of Palmas Case (United States v. The Netherlands): 316
- Arbitration of territorial dispute
- The US claimed that the Island of Palmas was part of the Philippines but the Netherlands claimed title as well.
- Contiguity of land does not work to show acquiring territory.
• Facts: the US claimed the island of Palmas was part of the Philippines and had been ceded by Spain by the Treaty
of Paris in 1898. the US as successor to the rights of Spain over the Phillipines, based its claim of title in the first
place on discovery. The Netherlands claimed that it had possessed and exercised rights of sovereignty over the
island from 1677 or earlier to the present.
• Issue: can an inchoate title prevail over a definite title founded on continuous and peaceful display of
sovereignty?
• Holding: No. An inchoate title cannot prevail over a definite title founded on continuous and peaceful display of
sovereignty. The continuous and peaceful display of territorial sovereignty is as good as title. Discovery alone,
without any subsequent act, cannot suffice to establish sovereignty over the island. There is no positive rule of
international law that islands situated outside territorial waters should belong to a state whose territory forms the
nearest continent or large island. No one contested the exercise of territorial rights by the Netherlands from 1700
to 1906. The title of discovery, at best an inchoate title, does not prevail over the Netherlands claim of
sovereignty. Dutch presence was continuous and on notice. The title of discovery exists only as an inchoate title,
as a claim to establish sovereignty by effective occupation.
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Inchoate: Impartial or incomplete.
- Territorial sovereignty involves the exclusive right to display the activities of a State.
- In cession, you can’t cede more than you have.
- Spanish claim to title: discovery
- Intertemporal Law: looking at law in force at the relevant time: promotes stability and fairness.
- Judge the Spanish according to the early 16th century laws. Did the Spanish have a claim under the 16th century
law.
- To claim prescriptive sovereignty, you have to show peaceful and continuous presence.
- res nullius: empty territory: terra nullius: territory belonging to no one. Cannot be found to exist where there is
local people with social/political organization.
Q: can we say that the distinction is a myth?
- other interested states could not have protested and objected with their own claim. That’s not peaceful display.
Legal Status of Eastern Greenland Case (Denmark v. Norway): 323
• Proceeding before the PCIJ
• Denmark claimed that Norwegian occupation of Greenland was invalid.
• Rule: To state a claim to sovereignty based on continued display of authority, two elements must be shown to
exist: 1. the intention and will to act as sovereign, and 2. some actual exercise or display of such authority.
• Fact: Norway issued a proclamation in 1931 purporting to place portions of Eastern Greenland under Norwegian
sovereignty on the theory that the territory was terra nullius. Denmark instituted proceedings in the Permanent
Court of International Justice against Norway. Denmark claimed that it had acquired sovereign rights over
Greenland based on continued display of authority (occupation).
• In view of the numerous treaties, legislation, and the absence of all claim to sovereignty over Greenland by any
other power from 1814 to 1915 and later, Denmark has displayed sufficient authority over the uncolonized portion
of Greenland to confer a valid title to the sovereignty. The Norwegian government’s occupation of July 10th 1931
was illegal and invalid.
• The court also mentioned that many third states had recognized Denmark’s sovereignty. Norway had also been a
party to various agreements describing Greenland as Danish. Norway also unsuccessfully claimed that in the 18th
century Greenland only referred to the colonized areas of western Greenland.
- Norway was held to have recognized Danish sovereignty.
Case Concerning Kasikili/Sedudu Island (Botswana/Namibia): ICJ 1999: Prescription: 327
• Petition to determine the legal status of an island.
• Namibia claimed title to an island based on an Anglo-German Treaty and the doctrine of prescription.
• Rule: The conditions cited by Namibia regarding acquisitive prescription are not satisfied here, thus its claim is
rejected.
• Facts: Botswana and Namibia petitioned the ICJ to determine boundaries between the two countries and the legal
status of an island under an Anglo-German Agreement of 1890. Namibia claimed title to the island based on the
treaty, or in the alternative the doctrine of prescription, since Germany exercised peaceful possession of the island
in full view and full knowledge of Britain, which was continued without interruption until Namibia’s accession of
the territory.
• Issue: Are the conditions cited by Namibia regarding acquisitive prescription satisfied here?
• Holding: No, Namibia has not established with the necessary degree of precision and certainty that acts of State
authority capable of providing alternative justification for prescriptive title, in accordance with the conditions set
out by Namibia, were carried out by its predecessors or by itself with regard to Kasikili/Sedudu Island.
• There is no evidence that either Namibia or its predecessors exercised state authority over Kasikili/Sedudu.
• Both people making use of the island.
• a titre de souverain: in the name of the sovereign.
Frontier Dispute Case (Burrkina Faso/Mali): ICJ 1986: 331 - - Uti Possidetis
• Petition to resolve a border dispute
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• Burkina Faso and Mali submitted a question to the ICJ regarding a border dispute.
• Rule: There exists an obligation to respect pre-existing international frontiers in the event of a State succession
whether or not the rule is expressed in the form of uti possidetis. Thus, the numerous declarations of the
intangibility of the frontiers at the time of the declaration of independence of the African states are declaratory.
The fact that the principle did not exist when the states declared such independence in 1960 does not foreclose its
present application.
- Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal
struggles provoked by the challenging of frontiers following the withdrawal of the administering power.
Uti Possidetis Juris (p. 331) – “as you possess, so may you possess”; provides that states emerging from
decolonization shall presumptively inherit the colonial administrative borders that they held at the time of
independence; it largely governed the determination of the size and shape of the states of former Spanish Latin
America beginning in the early 1800’s, as well as former European Africa and Southeast Asia beginning in the
1950’s. The relevance of this doctrine today is evidenced by the practice of states during the dissolution of the
former Soviet Union, Yugoslavia, and Czechoslovakia, and much of Africa apparently sanctifying the former
internal administrative lines as interstate frontiers; was essential during the post-Cold War breakups; many
populations are inherently unsatisfied with the boundaries upheld by the principle during these breakups; THIS IS
A BLACK LETTER LAW RULE IN INTERNATIONAL LAW
Justifications for Uti Possidetis:
1) reduces the prospects of armed conflict by providing the only clear outcome in such situations; absent such
a policy, all borders would be open to disputes, and new states would fall prey to irredentist neighbors or
internal secessionist claimants
2) because a cosmopolitan democratic state can function within any borders is as sensible as any other
approach and far simpler
3) (and buttressing the other two) uti possidetis is asserted as a default rule of int’l law mandating the
conversion of all administrative boundaries into int’l borders
Cons for Uti Possidetis:
1) creates s significant hazard in the name of simplicity – namely the temptation of ethnic separatists to divide
the world further along administrative lines
2) the extension of uti possidetis to modern breakups leads to genuine injustices and instability by leaving
significant populations both unsatisfied with their status in new states and uncertain of political
participation there; by hiding behind inflated notions of uti possidetis, state leaders avoid engaging the
issue of territorial adjustments – even minor ones – which is central to the process of self-determination
3) it ignores critical distinictions between internal lines and int’l boundaries and, more important, is
profoundly at odds with current trends in int’l law and politics
2. State Responsibility & Diplomatic Protection
ILC Draft Articles on State Responsibility – p. 301 Supp: soft law but very influential
Breach of Int’l Obligation - - Chapter III (p. 303): when responsibility arises
• Only international law is relevant to making the determination as to what constitutes
internationally wrongful act. The fact that it’s legal under national law is irrelevant.
• Element of Imputability: Article 7 – p.302; whose actions can constitute state action that can be
attributable to a state. Goes to action by state agents but the realm of possibility doesn’t end there
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because there are other actors whose acts can be attributed to the state - range of governmental
agencies; legislative, executive, judicial, and organs which are not part of the formal structure of the
State. Also any territorial government can act for the state (i.e. Federal system) and de facto state
acts, committed by other actors imputable to state for the purposes of state responsibility law
Article 9. States are responsible for the acts of their secret service, private individuals, and police,
regardless of whether they are covert;
- Conduct of private persons: Article 8 – p. 302; can be imputed to state if it’s established they were
acting on behalf of the state. Can be imputable to the state if: a) it is established that such person or
group of persons was in fact acting on behalf of that state; or b) such person(s) was in fact
exercising elements of the gov’tal authority in the absence of the official authorities and in
circumstances which justified the exercise of those elements of authority
• Ultra Vires Actions: Articles 10 & 11 unauthorized/beyond the scope of power allowed or granted
by the law of the state – can be individuals or ‘organs’; even under this condition, a state will be
held liable because we need clarity and security in IL. (i.e. Union bridge company; Youmans Case)
Policy motivation is to promote clarity in IL. At the end of the day, what matters is whether you’re
complying with IL. Fairness to other states.
• Basis of Responsibility: level of fault we have to find state responsibility. Degree of intention
/negligence v. just the fact of noncompliance (violation) aka strict liability v. negligence; Answer is
mixed. But strict liability for states is common in international tribunal approach (i.e. Corfu case)
Opinion is divided but strict liability is more common. This approach begets clarity and uniform
standard. Non-violating/victim state doesn’t care about degree and intent of negligence.
•Erga omnes: a legal obligation toward all; usally used in reference to human rights or
environmental issues. The term falls within the International Law Principle of Universality, that is
the idea that certain activities are so reprehensible that the rules of jurisdiction are waived so that
any state may apprehend an alleged perpetrator and try them under their own jurisdiction. Such
crimes might include: piracy, slave trade, operating a "stateless vessel", genocide, and war crimes.
A state is responsible to all states for these even if those states cannot show injury. Takes state
responsibility and translates into a particular situation. By nature of the obligation, everyone has an
interest in holding that violating state accountable. Erga omnes is just for states.
Case Concerning the Barcelona Traction, Lights, and Power Co. Ltd. (Belgium v. Spain), 2nd Phase ICJ 1970:
694
1) You have to have conduct that you can attribute to the state;
2) It must be a violation of intl. obligations of that state;
3) No defenses for the conduct;
• Concept of erga omnes is embraced in this case. All states can be held to have a legal interest in their protection.
(i.e. All states have an obligation to enforce the Geneva Conventions.)
Defenses that can shield a State from liability? Chapter V – p. 306 Supp
1. Necessity: Article 33 essential to state’s interests; a grave and imminent threat; cannot harm essential
interests of another state – survival, peace, fundamental life & death issues; cannot use when it violates
peremptory norms; cannot have contributed to the threat. Negative formulation. Only means of
safeguarding state’s ability to function.
2. Consent: Article 29 if consent is validly given by state A it cannot seek action, but state B can if B did
not give consent; consent can preclude wrongfulness but it cannot preclude obligations of peremptory
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norms. Conduct otherwise unlawful is rendered excusable because of consent. Must be expressly stated.
Para. 2 d
3. Force Majeure: Article 31 unintentional breach caused by an unforeseen event that makes it materially
impossible to conform to the obligations; external event beyond the control of a state. (i.e. a plane, due to
equipment failure, encroaches on a state’s air space. Exception: you can’t contribute to the occurrence of
the situation of material impossibility.
4. Distress: Article 32 extreme distress may cause the actor to carry out action to save his own life or the
lives of those entrusted to them; EXCEPT if the state contributes to the occurrence that has caused the
extreme distress. (Rainbow Warrior Case)
5. Self-Defense: Article 34 see use of force; must be taken in conformity with the Charter of the U.N.
Rainbow Warrior (New Zealand v. France) Arbitration Tribunal 1990: 704
2 spies arrested for bombing a Greenpeace ship; one of the spies was transported for abdominal pain; the other
because she was pregnant and her father had cancer; the tribunal does not buy the defense of distress in regards to
the woman because there was no good faith; it was unilateral action; the other problem was that the agents
remained in France and weren’t not sent back; France should’ve waited for New Zealand’s approval; ultimately
reparations were made to New Zealand; France claimed Force Majeure and Distress
• Failure to return defendant once distress was no longer an issue. Distress is available for a limited time to save
lives. Not available if the state acts to create as much or greater distress.
Gabcikovos - Nagymaros 1997: 709
They were claiming necessity because of the environmental threat; but court decided that necessity was not
available because the nature of the threat was not imminent; Hungary could’ve taken other steps;
• Essential interest of state is subjective, thus it must be limited by the court. Emergency threat.
Gabcikovos - Nagymaros 1997: 715
Slovakia claimed countermeasure; court rule the measure was out of proportion with the breach; if the breaching
party had a defense then “the wrongfulness would be preclude and there can be no countermeasure”
State responsibility: important aspect of IL.
3. Remedies
Counter Measures and Self-Help: Chapter II – p. 309 Supp/p. 713; must be necessary to stop the harm and must be
proportional to the violation and injury and necessary; must be something that is reversible; fairness towards
injured state is the greatest consideration here; among the most controversial of the Draft Articles as they embody
a series of compromises b/w arguably irreconcilable positions; NOT the same as self-defense
3 Types of Countermeasures:
1) Reprisal – would be illegal but for the prior illegal act; sometimes involve use of force (illegal
but allowed)
2) Reciprocal Measures – non-performance in fulfilling obligations towards the offending state so
long as those obligations correspond to or are directly connected with the original breach. Nonperformance can’t be something you can’t take back (legal)
3) Retorsion – generally permissible in int’l law irrespective of prior breach (i.e. diplomatic
severance) (legal but rude)
• Limitation on all of the above. If the other side bombs your city, you can’t do the same;
same for summary execution.
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Forms/Methods of Countermeasures:
1. Reparation – Article 42 the injuring state must make full reparation to the state it injures;
account shall be taken of the negligence or the willful act or omission of: a) the injured state; or b) a
nat’l of that state on who behalf the claim is brought, which contributed to the damage; in no case
shall reparation resulting depriving the population of a state of its own means of subsistence; the
injuring state may not invoke its municipal law as justification for the failure to provide full
reparation.
2. Restitution in Kind – Article 43 this is the priority int’l law although its rare in reality because
its usually not possible (i.e. someone is dead, the land is bombed, etc.); the re-establishment of the
situation, which existed before the wrongful act was committed, provided: a) that it is possible, b)
that doing so would not violate a peremptory norm , and c) would not burden the injuring state out
of all proportion to the benefit which the injured state would gain
3. Compensation – Article 44 specifically includes interest now; is much more common than the
above; available if and to the extent that the damage is not made good by restitution in kind; covers
any economically assessable damage sustain ed by the injured state
4. Satisfaction – Article 45 much more important than it seems; cannot be the kind that impairs the
reputation of the injuring state though; goes, in particular to moral damage caused by the injuring
act; may take the form of one or more of the following: a) am apology; b) nominal damages; and/or
c) in cases of gross infringement of the rights of the injures stat, damages reflecting the gravity of
the infringement; if done by agents of the offending state, they may be punished
5. Assurances and Guarantees of Non-Repetition – Article 46
Conditions Relating to Resort to Countermeasures: Article 48 p. 310 Supp
Prohibited Countermeasures: Article 50
1. The threat or use of force as prohibited by the UN Charter
2. Extreme economic or political coercion designed to endanger the territorial integrity or
political independence of the state which has committed the injury
3. Any conduct which infringes the inviolability of diplomatic or consular agents, premises,
archives and documents
4. Any conduct which derogates from basic human rights
5. Any other conduct in contravention of a peremptory norm of general int’l law
Dispute Settlement:
a) Conciliation – Article 56 a 3rd party comes in and tries to resolve the issue; more proactive than mediation; non-adjudicatory
b) Mediation – Article 55 some as conciliation but less pro-active 3rd party; nonadjudicatory
c) Negotiation – Article 54 the two sides site down face to face and try to compromise their
way out of it; essentially involved in all of these methods as agreement will have to be
reached for all of them; best use is for strong states against a weak state; non-adjudicatory
d) Inquiry – 3rd party investigates the disputed facts and gives a report of what actually
occurred and sometimes adds a recommendation; non-adjudicatory
e) Good Offices - Article 55 same as an inquiry but under the auspices of the UN Secretary
General or some other int’l big shot; non-adjudicatory
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f) Arbitration – Article 58 a form of mediation but the holdings are binding; different from
resorting to court because the parties can choose the applicable law and the arbitrators; semiadjudicatory
g) Judicial Settlement – the most preeminent institution is the Int’l Court of Justice (ICJ);
best use is for small states with a strong case; expensive in terms of money and expertise;
adjudicatory
B. Organizations (International (IGO) & Non-Governmental (NGO))
International Legal Personality and Powers of IGOs:
• Intl. organizations have exercised their legal capacity in many ways: treaties, sailing the seas flying their own
flag, convened conferences, etc.
• After states, these are the most accepted international persons as they are seen as having the necessary capacity.
But they have different rights and duties.
Preeminent IGO = The United Nations whose primary goal is to prevent war/promote human rights and social
welfare according to its charter. Not supranational organization like the EU. Under their umbrella also:
FAO – the Food and Agriculture Organization
WHO – the World Health Organization
ICAO – the Int’l Civil Aviation Organization
WB/IMF – World Bank and the Int’l Monetary Fund
WTO – the World Trade Organization (relatively new 1994)
UNICEF – U.N. Children’s Fund
• Security Council: principal organ dealing with issues of peace and security.
• General Assembly: highest democratic body in the world. Deals with humanitarian, legal, funding, and
constitutional initiatives and supervises various sub organs.
• ICJ: Judicial wing of the UN. It doesn’t have automatic judicial review.
• Economic and Social Council: political body. Members are state representatives. Supervises a range of
important bodies (i.e. relationships between NGOs and UN).
• Secretariat: Bureaucrats. Civil Servants.
UN Charter Article 41 p. 10 Supp; enumerates what measures the Security Council can take; may include
complete or partial interruption of economic relations and of rail, sear, air, postal, telegraphic, radio, and
other means of communication, and the severance of diplomatic relations
Reparation for Injuries suffered in the service of the UN ICJ 1949: 361
The UN was seeking reparations for the death of its chief negotiator, Bernadette; the question at issue in this case
is whether or not the UN can bring action itself; does the UN have a legal personality? The ICJ looked at the UN
charter to determine whether or not the UN had the right to bring such a claim and the ICJ found that it did; the UN
must have legal capacities and personality; the UN was intended to exercise and enjoy (and that’s what it’s doing)
functions and rights which can only be explained on the basis of possession of a large measure of intl. personality
and the capacity to operate upon an intl. plane; if the UN did not have this ability than it would have no power
anywhere; “doctrine of effectiveness”
• The UN has certain interests that the rights of the UN itself are not violated.
• How can the UN send people out into world if they cannot legally protect them?
Can the UN bring such a claim against a state? No doubt because it is bringing a claim against one of its members
for breach of intl. obligation.
Effectiveness Doctrine: this treaty cannot function unless you derive certain powers from it
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Implied Powers Doctrine: UN has the capacity and legal personality to bring legal claims; Effectiveness means that
under IL the organization must be deemed to have those powers which are conferred.
Prosecutor v. Tadic International Criminal Tribunal for the Former Yugoslavia 1995: 372
Did the UN have the authority to establish this criminal tribunal? It was established as a measure of the UN Sec.
Council; the Security Council has to report to the General Assembly within the parameters of the assembly; the
UN security council must maintain and restore peace and sometimes the methods necessary for that were not
foreseen when the UN charter was written; the UN is an evolutionary organization though
• Tadic claimed that the Security Council was not authorized to establish an international criminal tribunal.
• Rule: Once the Security Counsil determines that a particular situation poses a threat to the peace, it enjoys a wide
margin of discretion (exceptional powers under Chapter VI and VII of the UN Charter) in choosing the course of
action; not ultra vires for Security Council to set it up.
• The charter of the UN provides that the Security Council shall determine the existence of any threat to the peace
and decide what measures shall be taken to restore international peace and security.
• Security Council has a wide margin of discretion in choosing the course of action. • Here, Tadic was
challenging the legality and appropriateness of the measures chosen by the Security Council.
• Interlocutory Appeal: the appeal of an issue that does not resolve the disposition of the case, but is
essentially to a determination of the parties’ legal rights.
- Slippery slope argument; how far can the discretion go?
- There is no clear sense of judicial review or hierarchy between various tribunals and ICJ. Instead, it is a
decentralized legal system.
Non-Governmental Organizations (NGO’s): not the creations of states but rather are formed by individuals or
private groups sharing a common objective; they include worldwide organizations involved in humanitarian,
health, human rights, and environmental matters; professional and scientific associations; federations and
international unions made up of national associations representing labor or employers; religious bodies; scientific
academies; etc.; they provide vehicles through which transnational ‘civil society’ can influence the decisions and
actions of states and of int’l organizations, and indeed the attitudes and conduct of diverse actors
Restatement 3rd Part II, Chapter II on NGO’s: Int’l orgs are created by int’l agreements and are governed
by the law pertaining to such agreements. The law of int’l orgs has become a separate subdivision of int’l
law, much as in national legal systems the law of corporations developed independently of the law of
contracts even while retaining links to it. Particularly when organs of an int’l org are authorized by its
constitutive agreement to make decisions, allocate funds, admit and expel members and interpret or even
amend the constitutive agreement, the org. can be said to have a law of its own, a kind of ‘int’l
constitutional law’.
• Greenpeace and other such grass-roots organizations; the ACLU, NRA; such organizations are becoming
more involved in the intl. law scene; such organizations can be present during the UN General Assembly;
they can do anything the delegates can do except vote; should we be concerned about this? Maybe, because
NGO’s do not have to answer to anyone; they are not elected and not necessarily accountable (unless they
are a membership organization or fundraising)
• Example of the great things NGOs can do: Convention Concerning Landmines and Humanitarian Treaty
in Arms Control; they called for an uncompromising absolute ban on the use of land mines; they raised the
bar of intl. law; States have been unable to accomplishment as much in this area
• NGO’s don’t always direct their efforts at specific states; sometimes they lobby the “global civil society”
• Sometimes these NGO’s appear to be acting on behalf of a state (like in the shrimp case, they seemed to
be acting on behalf of the US against the 4 developing nations in the case); NGO’s do not exist in a
vacuum; they did nothing wrong because they played the role they were supposed to but perception might
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be different (the dispute at trial was whether or not the unsolicited briefs given to the DSU are admissible;
this is a formalist argument used by the opposing nations because they don’t like what the briefs say)
• Different levels of NGOs: International, regional, national, and by subject
• They are not international legal persons: so no powers and duties that IGOs have but they do play an
increasingly important role in IL.
• Some NGOs given consultant role with the UN. (i.e. The Economic and Social Council (ECOSOC)).
Allows access to the UN, to meetings, take notes, allowed to take the floor, present draft text. But they don’t
vote. Imbalance in NGO access, such as human rights but not security and disarmament.
• NGOs do lobbying work and standard setting work. Drafting certain texts. Offering expertise. Wide
range of NGOs work. Provide information on a range of issues.
• NGOs may submit information to a panel and it’s up to the panel to decide whether to accept. Further
suggests that NGOs have a role to play in IL.
• NGOs have an increasing claim toward being international person. Quasi access and quasi status.
• Criticism: who elects these NGOs? Non representatives. Also, growing number of NGOs dilute the
process. Lack of accountability.
C. Individuals & Corporations
Individuals and Private Corporations:
• There are crimes under customary intl. law for which individuals can be tried and punished by national
courts. There have been many instances of forceful intervention by a state to protect its own nationals from
mistreatment in another state. Individuals have long been implicated under the customary international law
of state responsibility. Under this regime if an alien individual is injured by a wrongful act or omission by
or attributable to a state and if the individual is unable to obtain redress under the legal system of that state
the state of which the injured individual is a national may intercede and assert a claim against the offending
state. (Mavromattis v. GB) Intl. agreements often create rights in individuals and juridical entities against
foreign states. (Treaties of friendship, commerce, navigations and rights under these agreements can be
enforced.) Intl. law must be applicable to the mutual relations of states, as well as the relations between
individuals and states. (Governing transnational transactions)
• Problem often is though that: The position of the individual as a subject of intl. law has often been
obscured by the failure to observe the distinction between the recognition in an intl. instrument of rights
inuring to the benefit of the individual and the enforceability of these rights at his instance; in other words,
I have rights, but can’t fight for them without my state? That’s no good)
• The individual as the end of community is a member of the community, and a member has status: he is
not an object. Individual has legally protected interests.
• Classically, individuals were not subject to IL. But individuals have more of a role both as subject and
object of IL with both duties and rights. Individuals may have standing re: asserting a claim before some
tribunals and committees.
•There is nothing in IL prohibiting individuals from acquiring rights under IL as long as that was the
intention of the parties that devised the treaty such that individuals can have rights and direct recourse in
international forum. They don’t however have access to ICJ.
• Individuals may use IL in domestic courts to claim their civil rights as IL endows individuals with
fundamental rights and freedoms.
• International Criminal Law: obligations of IL binding individuals directly regardless of superior domestic
law. There are crimes under customary international law for which individuals could be tried and punished
by national courts. However, if you focus too much on individual complicity, that ignores the vast
bureaucratic complicity of a state and can lead to scapegoating.
• IL doesn’t abide by collective punishment.
• Tribunals set up to prosecute individuals directly before IL: “natural persons”
• Individuals can be argued to have emerging international personality but not on the same level as states.
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Trial of Individuals before the Nuremberg Military Tribunals under Control Council Law 1951: 406
An International Tribunal formed to punish violators of war crimes, crimes against peace, crimes against humanity,
conspiracy; penal law of Germany not sufficient enough; the General Assembly affirms that genocide is a crime
under intl. law that the civilized world condemns and for the commission of which principals and accomplices
(whether private individuals, public officials, or statesman, and whether the crime is committed on religious, racial,
political or any other grounds) are punishable; the General Assembly is not a legislature but it is the most
authoritative organ of world opinion; Nuremberg Trials are not enforcing German law but rather world law
• Rule: As to the punishment of persons guilty of violating the laws and customs of war, tribunals may be
established and punishment imposed by the state into whose hands the perpetrators fall.
• Holding: Defendants contend they should not be found guilty because they acted within the authority and
command of German laws and decrees. The Nuremberg Tribunal enforced law as declared by the International
military tribunal charter and CC Law 10, pursuant to which it enforced international law as superior to any
Germany law. Such law did not excuse persons on the basis that they were acting in accordance with law
prevailing at the time of the crime, but that participation in the enforcement and enactment of such laws constituted
war crimes and crimes against humanity in itself and amounted to complicity in the crime.
Transnational Corporations under Intl. Law (TNCs): p. 421
• Private Corps that are incorporated in (and often have their headquarters in) one state and carry out
operations in many countries around the world
-Have become the subject of controversy lately due to their economic and, in some cases, political power,
the mobility and complexity of their operation, and the difficulties they create for national states – both
‘home’ and ‘host’ states – which seek to exercise legal authority over them
- Such corporations are most often private, nongovernmental entities; they are subject to applicable national
laws, and they are not international legal person in the technical sense
- For most purposes, TNCs are treated in int’l law as the nationals of a particular state, whether the state of
incorporation, the state where the corp’s mind and management are located, or of the state where the TNC
maintains its headquarters or registered office (siege social); TNCs, like individuals, must in most instances
rely on the protection of the gov’t of which t hey are nationals and do not have access to int’l legal
proceedings to protect their rights
- TNCs operate mostly on a modus vivendi (a compromise between adversaries that allows cooperation
temporarily) basis now
- Much depends on whether they take advantage of inconsistencies and loopholes in int’l arrangements, in
order to give regulatory competition a downward push, or whether accountability mechanisms can be
devised to unsure that they adopt and act as a transmission-belt for high business standards
- The worst abuses often take place outside the formal corporate sector; thus, a broader national and int’l
regulatory system is necessary, to ensure that improved standards are generally disseminated
- An ‘int’l companies law’ seems unlikely anytime soon but, the effort to develop a ‘code’ in the form of
binding rules or guidelines for TNCs is likely to continue
- TNCs might be accredited as non-voting participants in int’l conferences or they might be involved in
expert groups, which could participate in int’l conferences
- Issues implicated by TNCs: environment, rights of workers, sovereignty (some governments are less
powerful than the company in that country and may get overrun by the corporation - - Nike v. Vietnam),
development of emerging nations, child labor, etc.
- Only the sub-commission on human rights has been able to implement its principles upon transnational
corporations thus far
• Right now corporations have the least formal personality on the intl. scene but actually may be the most
powerful, more than states.
• Weissbrodt Principle: International responsibilities of TNC in human rights area.
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D. The Law of Treaties p. 451
Role of Treaties as Sources of Int’l Law: Two views
1) not an independent source of law, there are merely a specific legal obligation that bind the parties to the
agreement
2) a kind of source of international law in the classical sense and an important one has become this over time
(tried and true)
Multilateral treaties like International Treaties on the Treatment of Children adopted by all but Somalia =
international law
Treaties of Progressive Development: where there is no custom/relevant practice; preparing draft conventions on
topics where there hasn’t been state practice/custom before; “Adoption of the text of a treaty at an intl. conference
takes place by the vote of 2/3 of the states present and voting unless by the same majority they shall decide to
apply a different rule; this is more “progressive development”; (but they look for consensus primarily)
Treaties of Codification: taking agreements/understandings/customs that already exists and turning them into
treaties and codify them = international treaty; writing down in treaty from previously existing custom/custom that
was very close to wide acceptance
Three potential relationships between treaty law and international custom law (from book):
1) Treaties can expound upon custom that is pre-existing
2) Treaties can crystallize pre-existing custom and expand its reach
3) Treaties can create new law that can eventually create custom
Treaty Law:
• Treaties are a principal source of obligation in international law and must be registered with the UN via
Article 102
• The term covers the binding agreements between subjects of international law that are governed by
international law. Closest to legislation/black letter law. Best medium to imposing binding laws of precision.
- How to know when governed by int’l law:
a) The agreement’s subject matter entails high politics between states
b) The intention of the parties to be bound by int’l law
c) The agreement goes to principles of customary int’l law
• Does NOT cover:
a) Agreements between a state and a private company, even a multinational one, even if it is
half-owned by the gov’t
b) Purchase by a state of one thousand tons of chilled beef from another state govt
c) Purchase of a building or a piece of land for a legation, when this transaction is subject ot the municpal
law of one or the parties or to that of a 3rd state
d) A loan or a guarantee agreement between the World Bank and a state
- DOES cover agreements between states and NGOs and UN Charters
- Gentlemen’s Agreements: treaties that intend to create only political or moral, as opposed to legal,
commitments
- Drawbacks to Treaties:
1) They are used in wide range of purposes; treaties regulating commerce, limiting child soldiers, etc.
radically different instruments involving different number of parties. But have one body of rules that
govern these disparate instruments. Is it possible to have one set of rule applicable to different treaties.
Is this suitable??
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2) Treaties can have multiple parties following at a time. You can have as much as 194 state parties a part
of a universal convention. Vastly diff numbers of states yet one body of treaty law.
3) The question becomes, is one legal framework suitable for so many countries.
• Protocol: treaty that’s appended to another underlying treaty: elaboration
• Declaration: not a treaty
• Charter: might be used to refer to a treaty but not always
• Contract: does not apply. No consideration is required to find the existence of treaty.
- In UK, treaty-making capacity is in the Crown: formal matter. Now it’s put before Parliament.
- In US, Executive makes treaty, with advise and consent of Senate. Upside is its democratic/downside is that
the process can be lengthy.
• The Vienna Convention on the Law of Treaties: (p. 134 Supp) THE principal authoritative source on the
law of treaties; adopted in 1969; The convention is regarded in large part as declaratory of existing law.
Entered into force in 1980; is taken as a statement of customary intl. law: been invoked and applied by
tribunals; many examples of when the laws codified inthe convention were applied before it was put into
force in 1980 (p. 453); No provisions for war between Contracting Parties (today war is called Armed
Conflict)
The Scope of the Vienna Convention (p. 453): applies only to
d) applies only to treaties concluded between states (Article 1)
e) applies only to agreements in written form – must be a single text, but does not have to be on
one piece of paper. It can take the form of an exchange of notes/papers (Article 3)
f) is non-retroactive
g) acknowledges the continued application of customary law and, where relevant, general
principles of law to treaties, whether covered or not by the Convention; affirms that rules of
customary int’l law will continue to govern questions not regulated by the Convention
Note: Oral agreements do have force but not under Vienna Convention
Vienna Convention Part II, Section I: Conclusion of Treaties (p. 135 Supp)
Article 7 – p. 135 Supp; defines who may represent a state for the purpose of adopting a treaty for
that state
a) Those producing appropriate full powers
b) Those who it appears the state intends to have such powers via their action & other
circumstance
c) Heads of State, Heads of Gov’t, ministers of foreign affairs
d) Heads of diplomatic missions
e) Designated state reps
Article 8 – p. 136 Supp; if a treaty is concluded by someone who turns out to be unauthorized, the
treaty is without legal effect unless afterwards confirmed by the state
Article 9 – p. 136 Supp; the formal act whereby the form and content of the proposed treaty are
settled. Parties must agree that a particular written formulation will constitute a treaty.
Adopting a text is different from agreeing to undertake the agreement. It means that that
adoption is the outcome of negotiation.
Means by which to express consent and get into a treaty:
1. Signature - Article 12 or signature followed by ratification to make it complete (this is just an
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intention to be bound). Signature in some states may be subject to ratification and others might not
2. Exchange of Instruments – Article 13 so long as parties agreed that’s how consent would be
derived
3. Acceptance, Ratification, or Approval - Article 14 p. 137 Supp
4. Accession - Article 15 don’t have to sign but can become a party to a treaty if the country doesn’t
require ratification and/or if all parties agree that it can be done this way. US cannot accede.
Accession happens by the deposit of an instrument of accession: official communication of
accession.
Note: All these are equal and state binds itself. State party; undertaking the responsibility of
the treaty.
Article 18 – p. 138 Supp; obligation not to defeat object of a treaty; when a state signs a treaty
subject to ratification, the state is obliged to live up to the treaty (unless it rises to meat
the level of customary international law). Doesn’t meant that the state has to fully
implement that treaty(doesn’t have to change its legislation). It just can’t take
affirmative acts to defeat the treaty, especially for the Death treaty. Obligation is more
than not signing a treaty but less than if you ratified it. This interim last until the state
made its intention clear not to become party to the treaty. Misuse of rights prior to
ratification may amount to a violation of its treaty obligations; this obligation begins
when a state enters in negotiations for conclusion of a treaty; you cannot take steps to
defeat the scope and purpose of a pending agreement
Vienna Convention Part II, Section II: Conclusion of Treaties p. 138 Supp
Article 19 - Formulation of reservations; A State may, when signing, ratifying, accepting,
approving or acceding to a treaty, formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations, which do not include the
reservation in question, may be made; or
(c) in cases not falling under sub-paragraphs (a) and (b), the reservation is
incompatible with the object and purpose of the treaty.
Article 20 - Responses to reservations: If expressly permitted, no reaction is needed for it to be in
force. If the nature of the treaty requires holistic approach, total application, then
reservation requires the approval of all the parties. If the treaty is the
formitive/constituent document of an international organization, then reservation must
be accepted by the competent organ of that org. Just as a treaty has to be written, a
reservation has to written, as does any objection to that reservation. States rarely
affirmatively accept a reservation.
Article 20, Paragraph 4
1. A state makes a reservation and if another state explicitly accepts it, the treaty is in force
between those two states with reservation.
2. If States object to a reservation, they can say at that time that they do not accept that the treaty
is in force between the states. The reserving party and objecting party can become parties to
the underlying treaty but the treaty is not enforced between those two states.
3. On the other hand, if a state objects and can still say that it doesn’t preclude obligations
between the two parties; doesn’t object force without reservation.
• Politically, it’s difficult to object to reservation. Reciprocity is at play.
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• Implied acceptance is also possible: art 20, para 5. If a state doesn’t object within a
year, then that state is considered to have accepted the reservation and the treaty is in
force with reservation.
2 Basic Schools of Thought on Handling Reservations:
1. Opposability: Article 20 and 21. Concerned with whether other states are objecting to reservations:
focus on states. Secondary issue of whether a party chooses to accept the reservation or object.
2. Permissability: key issue is objectively whether the reservation meets the criteria of object and
purpose of the treaty. Is the reservation permissible? Article 19. Does it violate Art. 3? Preliminary
issue of whether as a matter of policy, other parties find the reservation acceptable (p. 485)
3. Race Convention: reservation is incompatible if 2/3 of the parties object to it.
Article 21 – p. 139 Supp; discusses the legal effect of a reservation; when a reservation is accepted
it DOES NOT change the treaty; it merely changes the legal obligations undertaken by
the reserving State from the treaty, and the relationship of other states to that reserving
State. It does not modify the treaty itself; it does not change the relationship between
the other states that are a part of the treaty (i.e. Libyan diplomatic bag reservationLibya could open anyone’s diplomatic bags, and anyone could open up Libya’s; BUT
France cannot open up Britain’s diplomatic bags); the key rule is reciprocity. States
can withdraw reservation in writing.
• We have reservation to encourage states to participate: tension between the objectives of preservation of
the integrity of the text of the treaty and desire for universal participation.
Reservations to the Convention on Genocide: ICJ 1951: 479
I: whether the reserving state can be regarded as being a party to the convention while still maintaining its
reservation, if the reservation is objected to by one or more of the parties to the convention but not by others?
H: that a state which has made and maintained a reservation which has been objected to by one or more of the
parties to the convention but not by others, can be regarded as being a party to the convention, if the reservation is
compatible with the object and purpose of the convention; otherwise, that state cannot be regarded as being a party
to the convention.
• No state can be bound without its consent; no reservation effective against any state without its agreement; no
party can unilaterally frustrate or impair the convention
• Held that all states were bound to observe the law respecting genocide, not just states parties, since the Genocide
Convention codified rules of IL from which no state may derogate.
General Comment #24: p. 490: 490
Human rights committee faced problem that its treaties are Swiss cheese due to too many reservations.
• Comment on reservations; General comment # 24: set out broad object and purpose covenant.
• Human rights treaties are different. Reciprocity doesn’t apply, they are not made for mutual benefit of states but
for individuals in a state and those people have to part in the process.
• Object and purpose of ICCPR is to create legally binding standards for human rights by defining certain civil and
political rights and placing them in a framework of obligations which are legally binding for those states which
ratify; and to provide an efficacious supervisory machinery for the obligations undertaken.
- Can’t make a reservation to a treaty that would be a violation of jus cogen.
- Can’t reserve non-derogable rights: like the right to be free to be from torture, etc. Rights that can never be
suspended even in times of emergency.
- Can’t make a reservation that says the covenant is the same as the national law. Problem is that the whole point of
human rights treaty is to change domestic practices.
- Reservations must refer to a particular provision of the covenant and indicate in precise terms its scope.
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- There was a problem during CEDAW; States would ratify treaties and then vitiate certain obligations through
reservations; the Human Rights Committee steps in and says that it will decide what reservations impair the treaty;
some reservations nullify the entire treaty and the HRC says ‘no, you can’t do that’; no states took it upon
themselves to object to reservations; so the HRC decided to do it; The US has problems with the HRC
intervention; the US asks “who is this HRC to come in and make up rules like this?”
- US criticizes the committee: pg. 493: Committee gave itself a greater role than states parties themselves in
determining the meaning of the covenant and of their own reservations; the point was to secure the widest possible
adherence, with the clear understanding that a relatively liberal regime on the permissibility of reservations should
therefore be required.
- International Law Commission: p. 494. If the treaty is silent then the monitoring body can comment. Legal force
can’t go beyond what’s been given.
Exclusion of reservations: can a convention of ‘legislative’ nature not allow any reservations at all? I.e. UN
Convention of the Law of the Sea 1982: no reservations or exceptions may be made to this convention unless
expressly permitted by other articles of this convention
Vienna Convention Part III, Section I: Observance of Treaties p. 140 Supp
Article 26 – Pacta Sunt Servanda: (“agreements must be kept”) The rule that agreements and
stipulations, esp. those contained in treaties, must be observed; Principle of good faith
compliance with the real meaning of the law. Attaches legal meaning and obligations.
If one state complies, it believes it can rely on others to do the same. Every treaty in
force is binding and must be performed in good faith. Purpose and intention should
prevail over its literal application.
Article 27 – A state cannot invoke its internal law as a justification for its failure to perform a
treaty. In national legal systems, domestic law should be construed insofar as possible
to avoid violating a state’s international obligation - - “Charming Betsy”
Vienna Convention Part III, Section II: Application of Treaties p. 141 Supp
Article 28 – Non-retroactivity and the Inter-temporal Problem: without a specific provision to
bind the parties to acts prior to the treaty, a treaty is not retroactive
a) any rule which relates to a single fact shall apply to facts that occur while
the rule is in force;
b) any rule which relates to the repetition or succession of identical facts shall
apply even though only one or some of the such facts should occur after the
entry into force of the rule;
c) any rule which relates to an actual situation shall apply to situation existing
while the rule is in force, even if these situations have been created
previously
Article 29 – A treaty obligation applies to the entire territory of a state, unless otherwise
stipulated. Some treaties, however, aren’t open to territory compromise, ie human
rights treaties. Entire federal system is bound by treaty obligations undertaken by the
central government
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Article 30 – Application of successive treaties/ Inconsistent treaties; 3 elements
1. If a treaty says that it is subject to, or is not to be considered as incompatible
with, another treaty, that other treaty will prevail.
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2. As between parties to a treaty who become parties to a later, inconsistent,
treaty, the earlier treaty will apply only where its provisions are not
incompatible with the later treaty.
3. As between a party to both treaties and a party to only one of them, the treaty to
which both are parties will govern the mutual rights and obligations of the
states concerned.
Interpretations of Treaties
You want to interpret the treaty so as to give force to its goal, to meet the ends of the treaty; beyond the
intention of the drafters the treaties aims/goals are most important; Judicial legislation is something that
should be avoided; they should interpret not revise treaties
Treaty Interpretation: 3 schools of thought re: how treaties should be interpreted:
1. Intentions of the drafters: only legitimate object is to ascertain the intentions or presumed intentions of
parties; Drawback is that it leads to subjectivity in the interpretation
2. Textual: ordinary meaning of the word school. Apparent significance of words regardless of intentions of the
drafters.
- Drawback is subjectivity. Different judges may find the same word differently
- Primary school but it is supplemented: Vienna Convention – Articles 31 (p. 141 Supp) interpret with the
ordinary meaning of the text but in their context and in light of the object and purpose of the treaty. Less
emphasis on intentions. You can also look at agreements about the treaty; drafting; subsequent practice;
look at relevant rules of IL: these are secondary docs that play a role in interpretation.
- Interpretation is governed by good faith.
3. Aims and Objects School: general purpose of treaty is what matters. What the treaty was trying to do. Look
at the place the treaty has come to occupy in IL; Humanitarian purposes may be an example
Rule of effectiveness: giving effect to treaty letting it achieve its purpose.
• Courts use a range of methods to interpret treaties.
• Most international treaties are in multiple languages: Plurilingual Texts. All have equal weight as a formal
matter. Realistically, English and French carry weight.
Article 31 – (p. 141 Supp); General Rule of Interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its
preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion
of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and
accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its
interpretation
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Article 32 – (p. 142 Supp); Supplementary Means of Interpretation; preparatory work; Travaux
Preparatoires: in order to confirm the meaning but can only be used if Article 31
reading a) leaves the meaning ambiguous or obscure b) leads to a result which is
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manifestly absurd or unreasonable. Helpful because it gives a sense of what the
drafters were thinking. On the other hand, negotiations occur informally that aren’t
recorded Different from the treaty itself.
Travaux Preparatoire- every major treaty has this that gives background of
the treaty and the intentions of the drafters. This is considered supplemental,
but it is looked at. United States looks to this and proposed that it be looked
at as a primary source of interpretation, but this was shot down.
Article 33 – all the language versions have equal weight. If one offers more limited interpreted
than others, then the limited one will relied upon because all states have at least
agreed to it.
Article 36 – (p. 142 Supp.) Third State Entries: state that is not a party to the treaty in question.
There has to be an intention to bind the third party and express acceptance by the
third party. If the third party is benefiting, it has to conform to the treaty. You can’t
bind a state that hasn’t agreed to a treaty, except in jus cogen area.
Vienna Convention Part IV: Amendment and Modification of Treaties p. 143 Supp
Article 41 – Usually treaty says how you can amend and modify a treaty. Article 41
Amendment only binds those states who agree to the amendment. If a state doesn’t
agree, it is only bound by the underlying treaty.
Organs of Interpretation and Interpretation by the Parties - (not discussed in class)
Jesse Lewis (The David J. Adams) Claim (US v. UK) Claims arbitration under the special agreement of
Aug. 1910. The US renounced the right to fish in Canadian waters, but they could enter Canadian bays for
specific reasons. Fishing schooner David J. Adams, entered and was seized by Canadian authorities. “ The
fundamental principle of the juridical equality of States is opposed to . . . the subjection of one State to an
interpretation of a Treaty asserted by another state . . . . The fact that this interpretation is given by . . . one
of the Parties does not make that interpretation binding upon the other Party.”
Vienna Convention Part V: Invalidity, Termination, and Suspension of Treaties p. 144 Supp
Article 42 – you can only invalidate a treaty through a provision of VC on treaty. Even if you
can get out, that doesn’t mean that you are absolved from other areas of
international law.
Article 43 – the invalidation of the treaty can’t impair the duty of any state to fulfill any
obligation embodied in the treaty to which it would be subject under int’l law
independently of the treaty
Article 44 – separability of treaty provisions; a right of a party to withdraw from, denounce, or
suspend the operation of the treaty may be exercised only with respect to the whole
treaty unless the treaty otherwise provides or the parties agree otherwise; for
exceptions see Article 44 (3) p. 144 Supp
Vienna Convention Part V, Section 2: Invalidity of Treaties p. 145 Supp
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Ultra Vires Treaties: treaty not complying with municipal law requirements. The way that a state
entered into a treaty. Has to be of fundamental importance. Consent to bound was made in such a
way that is in violation of rule of fundamental importance (ie constitutional rule). Not in accordance
with the procedure of that state. The rule has to be manifestly clear. You can’t get out of your
international obligations, unless there is egregious error. The state can claim that the treaty never
came into effect. It doesn’t affect the treaty as a whole.
Article 48 – Error; 1. A State may invoke an error in a treaty as invalidating its consent to be
bound by the treaty if the error relates to a fact or situation which was assumed by
that State to exist at the time when the treaty was concluded and formed an
essential basis of its consent to be bound by the treaty.
2. Paragraph 1 shall not apply if the State in question contributed by its own
conduct to the error or if the circumstances were such as to put that State on notice
of a possible error.
3. An error relating only to the wording of the text of a treaty does not affect its
validity; article 79 then applies.
4. you can’t use the error in wording of the treaty to get out of a treaty.
Article 49 – Fraud; If a State has been induced to conclude a treaty by the fraudulent conduct of
another negotiating State, the State may invoke the fraud as invalidating its consent
to be bound by the treaty. Fraud destroys the whole basis of mutual confidence
between the parties in a way that error does not. Fraud implicates good faith.
Article 50 – Corruption; If the expression of a State's consent to be bound by a treaty has been
procured through the corruption of its representative directly or indirectly by
another negotiating State, the State may invoke such corruption as invalidating its
consent to be bound by the treaty.
Article 51 – Coercion of a State Rep; Gravely viewed. Consequences are more serious because
of the gravity of situation; The expression of a State's consent to be bound by a
treaty which has been procured by the coercion of its representative through acts or
threats directed against him shall be without any legal effect. Any consent to be
bound is automatically invalidated.
Article 52 – Coercion of a State; A treaty is void if its conclusion has been procured by
the threat or use of force in violation of the principles of international law
embodied in the Charter of the United Nations.(Article 75 contains an
exception for coercion; if a state uses force, and met with force from the
intl. community, the peace treaty signed is not void); economic coercion is
excluded.
Article 53 – Jus Cogens; If at the time of the conclusion of a treaty, it conflicts with a jus cogens
or if a new norm comes about that reaches the status of Jus Cogens thereafter, the
treaty is also void. Jus Cogens trumps persistent objectors; only way to trump
preemptory norm is through new preemptory norm. Also, Article 64 (p. 149 Supp)
Article 54 – Termination of or withdrawal from a treaty under consent/provision of the treaty;
The termination of a treaty or the withdrawal of a party may take place:
(a) in conformity with the provisions of the treaty drafters may have entered
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a provision for withdrawal (argument against this is sovereignty); or
(b) at any time by consent of all the parties after consultation with the other
contracting States.
Article 56 – Termination of or withdrawal from a treaty with no provisions for it; if the right to
withdrawal is implied, a state has to give 12 month notice period. Implied
withdrawal can be for example: if parties intended to withdraw. Or such a right can
be implied from the nature of the treaty (i.e. Alliance at war; Commerce, etc.)
Examples of perpetual implied relations = Territorial session or settlement
Article 60 – Breach of a Treaty and the Consequence; Conflicting arguments to abolish from
treaty because of breach
 Some jurist argue that it is o.k. to abrogate (abolish) treaty for breach.
(unqualified)
 Other jurist view this as a way of just getting out of the treaty and limit
abrogation to material breaches.
“invoke as ground” as used in the International Law Commission Report
implies that a breach is not conclusive of treaty, but grounds for
termination. Parties may disagree that a component is “material.” If it is
material, non-breacher has a right to terminate in whole or in part or
suspend and can seek damages. Material Breach: heart of what the parties
were trying to accomplish: object and purpose.
Paragraph 1; A material breach of a bilateral treaty by one of the parties entitles the
other to invoke the breach as a ground for terminating the treaty or suspending its
operation in whole or in part.
Paragraph 2; A material breach of a multilateral treaty by one of the parties entitles:
(a) the other parties by unanimous agreement to suspend the operation of the
treaty in whole or in part or to terminate it either:
(i) in the relations between themselves and the defaulting State, or
(ii) as between all the parties;
(b) a party specially affected by the breach to invoke it as a ground for
suspending the operation of the treaty in whole or in part in the relations
between itself and the defaulting State;
(c) any party other than the defaulting State to invoke the breach as a ground
for suspending the operation of the treaty in whole or in part with respect to
itself if the treaty is of such a character that a material breach of its provisions
by one party radically changes the position of every party with respect to the
further performance of its obligations under the treaty.
 Example would be disarmament
What is considered a Material Breach?:
Paragraph 3 fundamental- only violation of a provision essential to the central
purpose of treaty (not favored by the convention). Material- violation of steps
necessary to accomplish treaty. (favored approach because these may have been part
of the inducement); A material breach of a treaty, for the purposes of this article,
consists in:
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(a) a repudiation of the treaty not provided for by the present
Convention(unlawful repudiation); or
(b) the violation of a provision essential to the accomplishment of the
object or purpose of the treaty.
Paragraph 4 The foregoing paragraphs are without prejudice to any provision in the
treaty applicable in the event of a breach.
Paragraph 5 Paragraphs 1 to 3 do not apply to provisions relating to the protection of
the human person contained in treaties of a humanitarian character, in particular to
provisions prohibiting any form of reprisals against persons protected by such
treaties. Purpose of this paragraph was to make it clear that lawful termination
should not preclude abrogation of humanitarian treaties like Geneva Conventions for
Protection of Prisoners of War. These treaties should not be dependent on the
reciprocation of other states. Example is seen in Secretary General’s report to
Security Council regarding the Armistice agreements between Israel and other Arab
States in 1949- just because one breaches that doesn’t mean that everyone else
should breach. If that happens then the treaty is nullifies by a single act.
In a nutshell, Article 60: Bilateral treaty: A commits violation, B can invoke the breach as a ground
for terminating or suspending the treaty: multilateral treaty: If one commits a material breach, the
other states can: a) by unanimous agreement suspend or terminate the agreement between all the
parties or between itself and the defaulting party; b) if one country feels it is particularly
aggrieved, it can invoke the breach as a ground for suspending the treaty only against the defaulting
party; or c) material breach by one party changes the position of everyone (i.e. disarmament
treaties) then any party can get out of the treaty on its own without first obtaining the agreement of
the other parties to suspend the operation of the treaty with respect to itself generally in its relations
with all the other parties (Pg. 546); 2 Exceptions: 1. if the treaty has its own rule, then you follow
those; 2. treaties of humanitarian character.
Advisory Opinion on Namibia ICJ 1971: 548
Concerning the legal consequences for States of the continued presence of South Africa in Namibia (South West
Africa), notwithstanding Security Council resolution 276; Mandate is silent on terminating the mandate. VC applies
even when the mandate is silent (Article 60). Treating the mandate as a treaty. Apartheid was a material breach that
gives them ground terminate the agreement
Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan) ICJ 1972: 551
Jurisdiction of the Council to entertain the dispute between India and Pakistan-Question of whether this dispute
involved a 'disagreement ... relating to the interpretation or application' of the Chicago Convention and Transit
Agreement alleged irregularities in the procedure of the Council-Relevance of this question to the task of the Court
in the present case.
Rule: A merely unilateral suspension does not per se render jurisdictional clauses inoperative.
FACTS: Pakistan (D) brought a complaint against India (P) before the Council of the International Civil Aviation
Organization (ICAO) for violation of treaty provisions after India (P) unilaterally suspended flights of Pakistan (D)
aircraft over Indian (P) territory. India (P) appealed to the I.C.J., asserting that the treaties had been suspended by
India (P) on grounds of a breach by Pakistan (D) when it hijacked an Indian (P) plane. Pakistan (D) objected to the
I.C.J.'s jurisdiction, claiming India's (P) unilateral suspension had made the jurisdictional clauses inoperative.
If you allow the clause to suspend the clause then the whole thing becomes a dead letter.
ISSUE: Does a merely unilateral suspension per se render jurisdictional clauses inoperative?
HOLDING AND DECISION: No. A mere unilateral suspension does not per se render jurisdictional clauses
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inoperative. If a mere allegation that a treaty was no longer operative could be used to defeat its jurisdictional
clauses, all such clauses would become potentially a dead letter. The Court has jurisdiction.
• No right to just dissolve but you have a claim to be able to do it. Further, the point of jurisdictional clause is to
adjudicate a claim of material breach; Right to make a claim, not unilateral action. Jurisdictional action rules
prevail in the face of claim of material breach
Article 62 – Fundamental Change of Circumstances (Rebus Sic Stantibus = things standing
thus)
Paragraph 1 A fundamental change of circumstances which has occurred with regard to
those existing at the time of the conclusion of a treaty, and which was not foreseen by the
parties, may not be invoked as a ground for terminating or withdrawing from the treaty
unless:
(a) the existence of those circumstances constituted an essential basis of the consent
of the parties to be bound by the treaty; and
(b) the effect of the change is to radically transform the extent of obligations still to
be performed under the treaty.
Paragraph 2 A fundamental change of circumstances may not be invoked as a ground for
terminating or withdrawing from a treaty if :
(a) the treaty establishes a boundary; or
(b) the fundamental change is the result of a breach by the party invoking it either of
an obligation under the treaty or of any other international obligation owed to any
other party to the treaty.
Example from the book state converting from agriculture to industrial and
abandoning agricultural treaties cannot invoke fundamental change if the conversion
was itself a breach. If the conversion is not a breach, then rule 62 2.b has not been
violated
Paragraph 3 If, under the foregoing paragraphs, a party may invoke a fundamental change
of circumstances as a ground for terminating or withdrawing from a treaty it may also
invoke the change as a ground for suspending the operation of the treaty.
Grounds on which one can invoke fundamental change of circumstances:
1. Change must have been of a fundamental character;
2. Change must have been unforeseen;
3. Circumstances which have changed, must have been an essential basis of the
consent to be bound by the treaty;
4. Effect of the change must be to transform radically the extent of the obligations
of the party invoking the change as a ground of termination; in other words the
change has to actually affect obligations under the treaty in a major way in
order to get out of the treaty.
5. Obligations in question are still to be performed under the treaty.
**Stringent criteria. Look at the language that’s in the negative. No state has
won by claiming change of circumstances.
Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) ICJ 1997: 557
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Goal of the treaty: Treaty of 16 September 1977 concerning the construction and operation of the GabcikovoNagymaros System of Locks on the Danube River; because Czechoslovakia no longer exists, is this treaty still
valid?; there is no fundamental change; the treaty is still valid because the fundamental change was not unforeseen;
fundamental change is only applied in exceptional changes according to article 62; Paragraph 1 was not proven
Hungary tried to invoke fundamental change as a reason for not continuing the completion of the dam. Hungary
argues the purpose of the treaty was a joint economic venture and now that the two legal regimes no longer existed,
the fundamental object was gone. Court shot this down saying that the regime did not cease to exist. Hungary also
invoked Article 61 – necessity (impossibility) which was shot down because 61 para. 2 says that if the
impossibility is a result of your own breach (failure to complete building dam) then it cannot be invoked. The
prevalent political conditions were thus not so closely linked to the object and purpose of the treaty that they
constituted an essential basis of the consent of the parties. New developments in the state of environmental
knowledge can’t be said to have been completely unforeseen. Even what appear to be massive changes, unless they
are connected to the nature of the obligation, you can’t invalidate a treaty.
The Fisheries Jurisdiction Case (UK v. Iceland) ICJ 1973: 559
Because the technology regarding fishing has changed, Iceland is seeking to expand its fishing territory permit;
Iceland says the ICJ should not hear the case because it’s happening off the Iceland coast; the ICJ should not have
jurisdiction because the treaty is terminated; the ICJ says there is no relevance to jurisdiction; the fundamental
change does not automatically terminate the treaty; it’s only grounds are to implement proceedings according to
dispute resolution; just right to call for termination and for ICJ to adjudicate it. Iceland can’t get off.
Techt v. Hughes Court of App. NY 1920: 562
An American citizen died in NY; daughter previously was married to citizen of Austria-Hungary and lost her
citizenship because she was married to Hungarian. There was a treaty that allowed people in foreign lands to
inherit real property; the sister claimed the whole property stating that the daughter was “alien enemy” at the time
the U.S was at war with Hungary; treaties which it is reasonably practicable to execute after the outbreak of
hostilities must be observed as in the past; A state found to be the aggressor can’t benefit/end treaty obligations;
After the conflict, the treaties spring back into effect.
Treaties During Time of Conflict/War: they remain operative unless:
1. Treaty allows or stipulates as much;
2. Incompatible to self-defense (as determined by Sec. Council)
E. Human Rights
Intro:
Historically the treatment of nationals by a state was an internal issue; the treatment of aliens was always an intl.
human rights issue; today how a state treats its own nationals has been brought upon the intl. human rights law
stage; (Holocaust, WWII, Bosnia, Apartheid, etc.); one of the most innovative areas of IL; human rights are: a right
to basic human dignities and are deserved by everyone
HR has come to cover a broad spectrum of areas; a “generation” of rights;
1st: Civil and Political rights (fair trial, right to life, right to not be detained, right to assembly, to political participation, nondiscrimination, etc). These concepts developed first stemming from natural law (Rousseau, Locke). Others say they are
considered because the West sees these as the most important.
2nd: the economic, social and cultural rights (housing, food, decent standard of living, health, education; Associated with
socialism and welfare state. US deny that these are rights.
3rd: Collective/group rights, rights (development, peace, self-determination, a healthy environment)
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• #1 and #2 above are about individual rights. Toughest to make sense of legally; the right to development, peace,
self-determination, healthy environment. Since 1970s. seen as championed by developing countries.
• Every right listed above is interdependent and indivisible with the others; how can you exercise one without
another? Or why would you want to exercise one without another? No clear separation of these rights (i.e. if no
education, can you participate politically? If no food, impact on 1st generation right to life).
• Sources include: UN charter re: human rights seen as non-binding and non-self-executing.Textually, the
International Bill of Rights: the Universal Declaration of Human Rights, the International Covenant on Economic,
Social and Cultural Rights and the International Covenant on Civil and Political Rights.
The Int’l Bill of Rights/Universal Declaration of Human Rights: (p. 165 Sup) not a treaty; it’s a declaration and
is not legally binding. Charter, statement of collective values of international community; Human rights are
universal. This means that EVERYONE has these rights; includes economic, social, and political rights. Set out
that all human beings, wherever they live and go, by virtue of being human, have certain rights. Adopted by GA.
There is an entire table of intl. human rights instruments on p. 599 - 600; multi-lateral soft law/something to be
strived for; Declaration is bifurcated into two different covenants:
International Covenant on Economic, Social, and Cultural Rights (ICESCR) §8.2 – (p. 168 Supp) Requires
affirmative steps, but really both require restraint and affirmative steps to an extent; there is disagreement
on the legal status of this (Not ratified by the U.S.)
• Argument that it’s different and needs separate enforcement mechanisms; weaker.
• Takes provision from the universal declaration and transforms them into hard law.
• The obligation is to take steps toward implementing these rights, not immediate like CCPR. Level
of obligation is different.
• Emphasis on international cooperation. Wealthy countries helping poor countries.
• Working on draft to allow complaints like CCPR.
International Covenant on Civil and Political Rights (ICCPR) §8.3 – (p. 173 Supp) requires the states to
refrain from conduct; talks about the rights of individuals unlike the ICESCR which talks about the rights
of states; created legal obligations unlike the UDHR (ratified but non-self executing in the U.S. +
reservations)
• Takes the elements out of Universal Declaration and crystallizes them: right to privacy, equality
before the law, etc. All given hard law. Human Rights Committee (consisting of experts who serve
in expert capacity rather than their country created to monitor compliance. States can choose to
ratify or not. US ratified it with reservations.
- 2 Optional Protocols:
1. Optional Protocol to the Int’l Covenant on Civil and Political Rights §8.4 – (p. 184 Supp)
Creates complaints mechanism; any individual in a country that has ratified the protocol can
complain directly to HRC violations within his country. Elevating individuals as
international person. They review reports re: how they are implementing the treaty at
home. Radical notion. Public reporting on human rights and the committee releases a public
document. They also issue general comments: quasi jurisprudence.
2. Second Optional Protocol to the Int’l Covenant on Civil and Political Rights, Aiming at
the Abolition of the Death Penalty §8.5 – (p. 186 Supp); no on within the jurisdiction of
a state party to this protocol shall be executed; states must take measure to abolish the
death penalty; no reservations may be made except in time of war; parties must report the
measures they are and plan to take
Article 4 (p. 174 Supp) Derogation: suspension of human rights in a particular situations is allowed
by a treaty itself. In times of emergency which threatens the life of the nation and the existence of
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which is officially proclaimed, the states parties to the covenant may take measures derogating from
their obligations, provided that such measures are not inconsistent with their other obligations under
IL and do not involve discrimination solely on the ground of race, color, sex, language, religion or
social origin. The only obligations non-derogable are those of basic human rights which cannot be
derogated (jus cogens like: right to life, freedom from torture, slavery/servitude, natural law). Must
notify the Secretary General.
• Threshold for use is very high: event must jeopardizes national security.
• Why notify? Because they do not want to look like they are just disobeying. It also gives
accountability for the state’s actions; it must be public; it must be for a limited time; can’t
derogate all rights, just those necessary to remedy the emergency; Derogation is not a
reservation; it’s a limited exceptional situation; cannot be perpetual
• When the emergency ends, so too must the derogation
• Two most frequently derogated rights: Article 9 arbitrary detention (see Lawless Case),
Article 14 right to a fair trial
Customary international law and Human Rights: (p. 602)
• Whether a state has ratified or not, a state can’t encourage and can’t perform the following: genocide,
slavery, gender discrimination, murder or causing the disappearance of individuals, torture, prolonged
arbitrary detention, systematic racial discrimination.
• Customary IL is important for states that haven’t ratified. States can’t persistently object.
• To find customary law, we have to find opinio juris. States also have to have officially accepted.
- No mentions of economic and social except for the (f) discrimination; There is only systematic racial
discrimination and no others are mentioned.
Lawless Case European Ct. of Human Rights. European Convention on Human Rights: 608
Irish govt. said organization was threatening the govt. they were creating violence resulting in destruction of
property and loss of human rights. Mr. Lawless was detained without trial or being charged w/specific crime
Arbitrary detention of suspect individuals; Ireland derogated one of its obligations; what could they have done
instead? Sealed the border; that gives up freedom of movement; either could be derogated; the European Court of
Human Rights said detention was ok to be derogated; sealing the border stops everyone whereas detention only
violated one person’s rights; in this case there is judicial supervision of the detention (not just the executive
branch). Derogation in this case is properly tailored to the national security issue; This is an instance when the
human rights framework tries to be flexible in such instances of terrorism; Trade off between state and individual
autonomy.
• A state may hold an individual without trial in a time of national emergency if doing so is necessary to meet the
emergency. The European convention prohibits such activity. However, the convention provides for derogation
from such prohibitions if a national emergency exists, and the derogation is necessary to meet the emergency.
Here, Ireland was experiencing widespread violence which normal police procedures had proven unable to handle.
It appears that gathering evidence necessary to gain a conviction in regular courts was nearly impossible against
IRA members. This, coupled with the grave peril the IRA presented to Ireland, validated the derogation for the
Convention. Most Charters and Conventions of an intern’l character provide for appropriate derogations.
Human Rights in the United States:
Right after WWII, the US was very active in the human rights scene; it championed certain rights in
particular; the US’s reputation has changed in recent years; it is now seen as isolationist; the US has its own
understanding of human rights = to fix other countries not within itself; the US is arbitrarily detaining
people w/o notice and has not filed many required reports to the UN; it has been difficult to get the US to
adhere to human rights treaties; the US has not ratified many protocols (CEDAW, against Children’s
Rights, etc); the US was only taking on certain obligations to the extent that they were already included in
the US Constitution; U.S. did play an important role in the development of international human rights law
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& was the champion of treaty against torture though; Resistance to accepting international standards and
international scrutiny, on matters that have been for the US to decide. Us has ratified the ICCPR, Racial
discrimination and not the ESCR (although it has signed), women’s convention and children’s convention
(only one of the other states has not ratified this) and has extensive reservations understandings and
declarations ( i.e. Reservation on capital punishment for people who are internationally considered as
children at the level of (jus cogens); although the Supreme Court has recently made 21 years the cut off
age.)
Implementation and Enforcement of Human Rights:
• International human rights law and agreements have the same status and the same binding character as
other international law and agreements. However, IL generally is largely observed because violations
directly affect the interests of state, which often deter, prevent, or prompt states to respond to violations.
Violations of the IL of human rights, on the other hand, generally injure the inhabitants of the violating
state; ordinarily, other states are not directly affected by such violations and their concern for human rights
in other states has been uneven. Commission on human rights is a political body where political concerns
generally prevail. However, you still have state participation. The committee can only look at practices of
member parties.
Different layers of Enforcement:
Universal 1. UN General assembly- everyone reports to the general assembly
2. Treaty monitoring bodies (elected by states but speak on only their respective area of treaty (i.e.
Human rights committee overlook the ICCPR and reports to Economic and Social Council who the
reports to the GA; Committee refers to expert areas; Commission refers to state representatives
Regional 1. International systems at national level
2. Local enforcement
Convention on the Prevention and Punishment of the Crime of Genocide §8.6 – (p. 187 Supp/625)
Article VIII – (p. 189 Supp) Enforcement by UN; Any contracting party may call upon organs
of the UN to take action under the Charter to prevent and suppress genocide (from
sanctions to war); no state has ever actually used this Article to bring an action
against genocide
Article IX – Dispute Settlement; disputes shall be submitted to ICJ; States refer actions through
the Security Council; Two types of legal accountability: hold a person
responsible or the entire state; The front line of human rights law is at the domestic
level; to truly enforce and make the treaties, obligations, and covenants of human
rights laws effective, a nation must have them within its own law human rights
laws; otherwise their obligations are meaningless.
International Covenant on Economic, Social, and Cultural Rights (ICESCR) §8.2 – (p. 168 Supp) weaker than
ICCPR; Committees do have to submit reports; less mechanisms available; no procedure for hearing complaints
(they are in the process of drafting an optional protocol on enforcement now). But some states claim that ESC
rights aren’t judiciable (judicial remedy isn’t available: minority position).
International Covenant on Civil and Political Rights (ICCPR) §8.3 – (p. 173 Supp) relatively weak
Part II, Article 2 – (p. 174 Supp) Most important Article towards enforcement of the Covenant;
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1. Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the
present Covenant, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party
to the present Covenant undertakes to take the necessary steps, in accordance with its
constitutional processes and with the provisions of the present Covenant, to adopt such laws
or other measures as may be necessary to give effect to the rights recognized in the present
Covenant.
3. Each State Party to the present Covenant undertakes: - - Obligations of each state party
(a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by any
other competent authority provided for by the legal system of the State, and to
develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when
granted.
Article 28 – (p. 180 Supp) Human Rights Committee; this is the Covenant’s principal organ of
implementation; consists of 18 members, nationals of states parties, who serve in
their personal capacities; the committee considers the reports submitted by states
parties per Article 40
Article 40 – (p. 182 Supp) Enforcement & Reports; States must submit a report to the Secretary
General. When this is not done, the UN has threatened to review their records based
on NGO’s or news reports. Secretary General submits to the respective committees
who issue general comments to the economic and social council
Article 42 – (p. 184 Supp) Conciliation Commissions; if a matter referred to the Committee in
accordance with Article 41 is not resolved to the satisfaction of the states parties
concerned, the Committee may, with the prior consent of the states parties
concerned, appoint an ad hoc conciliation commission, which shall consist of 5
members acceptable to all states parties (parties have 3 months to pick the 5; can
go with just three if they don’t meet the 3 month deadline though); committee
appointed to work out problems when a matter referred to a committee remains
unresolved. Optional Protocol, human rights committee can hear complaints from
individuals but only if the state has ratified the convention and protocol.
Communications have been accepted from organizations.
Horizontal Enforcement: formally sovereign equals. States enforcing rules against each other; putting pressure on
states largely via public shaming/public exposure of violations
• Largely insufficient system but there are mechanisms to deal with it.
• Recourse to ICJ re: genocide. Upside: resolution Downside: time involved & people already killed. Any
party can bring violation to the attention of the security council.
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International Rights & Remedies Under Int’l Agreements: 3 different perspectives
1) State to State: int’l human rights agreements are undaringly viewed as undertakings between state
parties, creating rights and obligations between them
2) Individual to State: While creating rights and duties for the states parties, these agreements also
give the individual rights against her society under int’l law; the individual has these int’l legal
rights even though they are enforceable only by interstate remedies, by gov’ts or int’l bodies acting
on her behalf
3) Middle Ground: the states parties, as legislators, have legislated ‘human right’ into int’l law giving
them status as affirmative independent values; acting with other states (the state as legislator), each
state agrees to recognize and give legal status in the int’l system to ‘human rights’ as claims that
every individual has – or should have upon her own society; in addition, each state (the state as
obligor) undertakes to respect and ensure these values for its own citizens, thereby also creating
rights in other states, and perhaps in individuals
Ultimately, it comes down to NGOs and concerned individuals to translate international human rights obligations
into reality.
G. International Criminal Law (ICL)
• Branch of law that holds individuals directly responsible for their violations of international law; came of age
during the Nuremberg Tribunals.
• International crime is a crime committed by an individual defined by IL.
• jus ad bellum: when states can use force (hen do they have just cause?
• jus in bello: how states can use force. Govern how a states uses force
- Cold war completely paralyzed ICL. Not until the end of Cold War/1990’s that Int’l Criminal Law undergoes a
heyday. Series of ad hoc tribunals, via resolutions of Security Council.
Nuremberg Military Tribunals, 1951: p. 1325 - - p. 619 Supp
Principle VI: The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace: (i) Planning, preparation, initiation or waging of a war of aggression or a
war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts
mentioned under (i).
(b) War crimes: Violations of the laws or customs of war which include, but are not limited to,
murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population
of or in occupied territory; murder or ill-treatment of prisoners of war, of persons on the Seas,
killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or
villages, or devastation not justified by military necessity.
(c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman
acts done against any civilian population, or persecutions on political, racial or religious grounds,
when such acts are done or such persecutions are carried on in execution of or in connection with
any crime against peace or any war crime.
Principle VII: Complicity in the commission of a crime against peace, a war crime, or a crime against
humanity as set forth in Principle VI is a crime under international law.
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3 Principal Objectives of the Tribunal:
1. to treat wars of aggression as crimes under international law
2. to treat atrocities against civilians as crimes against humanity
3. to achieve these ends through a trial that would uphold the rule of law by protecting the rights of
the defendants to due process.
Charter of the UN Chapter III, Article 7 – p. 3 Supp
1. There are established as the principal organs of the United Nations: a General Assembly, a Security
Council, an Economic and Social Council, a Trusteeship Council, an International Court of Justice, and a
Secretariat.
2. Such subsidiary organs as may be found necessary may be established in accordance with the present
Charter.
Charter of the UN Chapter V, Article 25 – (p. 7 Supp) The Members of the United Nations agree to accept and
carry out the decisions of the Security Council in accordance with the present Charter; member states are obligated
to accept and carry out decisions of the security council.
UN Tribunal for the Former Yugoslavia: 1332 - -p. 620 Supp
ICTY (Intl. Criminal Tribunal for Yugoslavia) – created thru the Security Council via Article 7; kind of
illegitimate since this kind of stuff is supposed to be done via drafting and ratifying a treaty; but treaties take
forever; charges were for:
1. violations of customs of war – war crimes
2. genocide
3. crimes against humanity
4. grave breaches of the Geneva Conventions of 1949
• Sec. Council was able to create the ICTY because they claimed violations threatened world peace and security;
• Relationship between national courts and the ICTY – primacy – the ICTY asks for jurisdiction if the crime is
prosecuted only as an ordinary crime, it’s a sham trial (or shielding it), and if legal issues are closely related to and
implicate investigation before the ICTY
- Tribunal consisted of several trial chambers and an appellate chamber; NGO’s allowed to participate
Prosecutor v. Tadic 1995: 1342
Tadic personally beat prisoners to death and raped at least one woman; ordered the systematic rapes of
other women; ordered the torturing and humiliation of other prisoners in the concentration camp; the issues
were:
1. Unlawful establishment of intl. tribunal - the Sec. Council has power when it’s a threat to peace;
discretion is very broad so the court will defer to Sec. Council; the security council has resorted to
the establishment of a judicial organ in the form of an international criminal tribunal as an
instrument for the exercise of its own principal function of maintenance of peace and security.
Article 41: (p. 10 Supp) Security Council may employ any means to obtain peace and security.
2. The Security Council was endowed with the power to create this international tribunal as a measure
under Chapter 7 in the light of its determination that there exists a threat to the peace. In
determining whether a tribunal has been established by law is not whether it was pre-established or
established for a specific purpose or situation; what is important is that it be set up by a competent
organ in keeping with the relevant legal procedures, and that it observes the requirements of
procedural fairness.
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3. Unjustified primacy over competent domestic court – the nature of the crime is so heinous that there
are intl. stakes; Ch. 7 sovereignty loophole basically says that even though UN Charter
shouldn’t encroach domestic jurisdiction the UN shall still have enforcement powers, that
principle of sovereignty shall not prejudice the application of enforcement measures under
Chapter 7; the security council is empowered and mandated, by definition, to deal with transboundary matters or matters which, though domestic in nature, may affect international peace and
security. It would be a travesty of law and a betrayal of the universal need for justice, should the
concept of state sovereignty be allowed to be raised successfully against human rights. Indeed,
when an international tribunal such as the present one is created, it must be endowed with primacy
over national courts. The crimes at bar are not crimes of a purely domestic nature. They are really
crimes which are universal in nature, well recognized in international law as serious breaches of
international humanitarian law, and transcending the interest of any one state. In such
circumstances, the sovereign rights of states cannot and should not take precedence over the right of
the international community to act appropriately as they affect the whole of mankind and shock the
conscience of all nations of the world.The tribunal was set up to deal with threat to peace and
security. Furthermore, only states can make claims of sovereignty not Tadic
UN Tribunal for Rwanda: 1352 - -p. 629 Supp
ICTR created thru the Security Council via Article 7; to date: 72 arrests, 26 adjudicated cases, 19 still on trial; goal
is to be done by 2010; only goes to events for the calendar year of 1994; only goes to Rwandans who committed
crimes in Rwanda and/or neighboring states and crimes by non-Rwandans inside Rwanda; differences with the
ICTY stem from the fact that the conflict in Rwanda was essentially internal, whereas the conflict in the former
Yugoslavia was in part international; includes several trial chambers of three judges and a 5 judge appeals
chamber; both the ICTR and the ICTY are served by a single prosecutor
Prosecutor v. Jean-Paul Akayesu (p. 1355): Akayesu was up on charges of Genocide; a great step forward for
int’l law here was the inclusion of rape/sex crimes in the definition of genocide; furthermore rape was not given a
male-centric definition focusing solely on penetration; notion of a ‘plurality of offenses’: one particular act may
constitute both genocide and a crime against humanity; intent component of genocide can be inferred from the
totality of the circumstances;
Tribunals have since been proposed for: Cambodia, East Timor, and Sierra Leone.
“Borders should not be considered as a shield against the reach of the law and as a protection for those who
trample under foot the most elementary rights of humanity.”
Rome Statute of the Int’l Criminal Cour - RSICC– p. 637 Supp/1367
Introduction:
• Cutting edge/big step forward in terms of enforcement of IL.
• The permanency is very different from other tribunals. Nuremberg concentrated on only one side and
Yugoslavia and Rwanda were limited in its geography.
• Focus on rogue perpetrators: Bad perpetrators.
• Universal, global, permanent approach to international criminal justice: same process and standards
to potential perpetrators whose actions come within ICC jurisdiction.
• Long process to get to this court. Product of difficult negotiations.
• RSICC was approved on July 17, 1998 by a vote of 120 states in favor and seven opposed.
• The Statute remained open for signature until December 31, 2000. Comes into effect upon ratification by
30 states. Entered into force in 2002. 139 signatories and 93 parties ratified. Only the UK and France have
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ratified the statute. China or Russia didn’t sign or ratified. US signed but did not ratified. Bush gave notice
saying it has no intention of ratifying.
• Judges have been elected. Of 18, 7 are women. One prosecutor from Argentina: 2003 appointment. He is
considering Uganda and Congo. These came from relevant heads of state. Assented to jurisdiction of ICC.
Referral is a basis of jurisdiction. Here, national courts are unable to deal with these cases.
• US opposed: the Dept. of Defense mounted a vigorous campaign in opposition which was based primarily
on the concern that US military personnel serving abroad might be subjected to politicized prosecution for
alleged war crimes over the objection of the US. Public opinion in US is divided.
• Schafer: opposed US participation. Political prosecutions of US service members serving abroad in states
that have ratified the Statute. Rebuttal: ICC will have qualified judges and prosecutor; also the principle of
complementary means that if the state tried or investigated the ICC will defer its jurisdiction. Relationship
between court and national court is very different from ad hoc tribunals.
Structure and Jurisdiction of the Intl. Criminal Court:
• The Statute empowers the Court to intervene in cases where a State is unwilling or unable to exercise its
ational jurisdiction. The purpose of that clause in the Statute is to ensure that mass murderers and other
arch-criminals cannot shelter behind a State run by themselves or their cronies, or take advantage of a
general breakdown of law and order.
Artcile1: (p. 638 Supp) the ICC will be a permanent institution vested with competence to try
individuals indicted for the most serious crimes of international concern specified in Article 5; also
provides that the court shall be complementary to national criminal jurisdiction
Artcile 5: the jurisdiction of the Court is limited to the most serious crimes of concern to the
international community as a whole. It has jurisdiction to the following crimes:
1. Genocide – Article 6 (definition lifted from the Genocide Convention): genocide means any of
the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial
or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to member of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
2. Crimes against Humanity (1371) Article 7 – any of the following acts when committed as part
of a widespread or systematic attack directed against any civilian population, with knowledge of the
attack: during war time or not. May be separate from armed conflict. Can happen in peacetime.
Knowledge requirement may be difficult for Prosecutor: high threshold and mens rea. Broader
attack. Fairness argument: aggravated offense and not ordinary murder. Orchestrated and planned
atrocity.
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental
rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or
any other form of sexual violence of comparable gravity;
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(h) Persecution against any identifiable group or collectivity on political, racial, national,
ethnic, cultural religious, gender as defined in paragraph 3, or other grounds that are
universally recognized as impermissible under international law, in connection with any act
referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or
serious injury to body or to mental or physical health.
3. War Crimes Article 8– The court shall have jurisdiction in respect of war crimes in particular
when committed as a part of a plan or policy or as part of a large-scale commission of such crimes.
In relation to international humanitarian law. Both in international armed conflict and internal
conflict. Not all war crimes can be prosecuted here. Patterns of war crimes. Not isolated events.
• For the purpose of the Statute, war crimes means:
(a) grave breaches of the Geneva Conventions, namely, any of the following acts against
persons or property protected:
(i) Willful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Willfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity
and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile
Power;
(vi) Willfully depriving a prisoner of war or other protected person of the rights of fair and
regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
(b) Other serious violations of the laws and customs applicable in international
armed conflict, within the established framework of international law.
(c) Civil war provision
4. Aggression – the ICC will have jurisdiction to try individuals for the crime of aggression only if
the state parties are able to agree on a definition of the crime and on the conditions that would have
to be fulfilled before the ICC could exercise jurisdiction over it and then to adopt such a provision
under the articles on amendment of the Statute. GA’s definition has been deemed as insufficient in
criminal law.
Article 12: (p. 644 Supp) A State which becomes a Party to this Statute thereby accepts the
jurisdiction of the Court with respect to the crimes referred in article 5. The State where the crime
took place must’ve ratified the statute and/or the accused individual must be national of a state that
has ratified the statute. Focus on nationality prong. Compromise: 2 basis of jurisdiction:
territoriality and nationality, not passive and universality. If the acceptance of a state which is
not a party to the statute is required that state may by declaration accept the exercise of jurisdiction
by the Court. The Court may exercise jurisdiction over anyone (even non-nationals of a party)
anywhere in the world if either the state in which the crime was committed or the state of the
accused’s nationality consents.
Article 13: (p. 645 Supp) Exercise of Jurisdiction; Security Council acting under Chapter 7 of the
Charter can bring the claim. The prosecutor can initiate and bring the claim. A state, by referring to
the Prosecutor, can bring the claim.
Article 14: (p. 645 Supp) Referral of a Situation by a State Party; A State which becomes a Party to
this Statute may refer to the Prosecutor a situation in which one or more crimes within the
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jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the
situation for the purpose of determining whether one or more specific persons should be charged
with the commission of such crimes; a referral shall specify the relevant circumstances and be
accompanied by supporting documentation.
Article 15: (p. 645 Supp) Prosecutor & Investigation; Can investigate on the basis of information
within the jurisdiction of the court; there are specific procedures for the prosecutor to follow; may
initiate investigations proprio motu (self-initiating prosecutor) on the basis of information on
crimes within the jurisdiction of the Court with the consent of two judges. Prosecutor can seek
information from States, organs of the UN, IGOs or NGOs, or other reliable sources and can receive
oral or written testimony. If the Prosecutor deems that there is a reasonable basis to proceed with an
investigation, he shall submit to the Pre-Trial Chamber a request for authorization of an
investigation. If the Pre-Trial Chamber agrees, then it can authorize the commencement of the
investigation.
Article 16: (p. 646 Supp) Deferral of Investigation or Prosecution; Sec. Council can ask for a
deferral of hearings up to 12 months; (Sec. Council can also ask to stop a case if by unanimous
vote). Here, SC has to pass a resolution to suspend investigation.
Article 17: (p. 646 Supp) Issues of Admissibility
1. A case is inadmissible where:
(a) the case is being investigated or prosecuted by a state which has jurisdiction
over it, unless the state is unwilling or unable genuinely to carry out the investigation
or prosecution
(b) the case has been investigated by a state which has jurisdiction over it and the
state has decided not to prosecute the person concerned, unless the decision resulted
from the unwillingness or inability of the state genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of
the complaint, and a trial by the Court is not permitted;
(d) the case is not of sufficient gravity to justify further action by the Court.
2. In determining “unwillingness”, the court shall consider whether one or more of the
following exist:
(a) the proceedings were or are being undertaken or the national decision was made
for the purpose of shielding the person concerned from criminal responsibility for
crimes within the jurisdiction of the Court referred in article 5;
(b) there has been an unjustified delay in the proceedings which in the circumstances
is inconsistent with an intent to bring the person concerned to justice;
(c) the proceedings were not or are not being conducted independently or impartially,
and they were or are being conducted in a manner which, in the circumstances, is
inconsistent with an intent to bring the person concerned to justice.
3. In determining “inability,” the Court shall consider whether, due to a total or substantial
collapse of unavailability of its national judicial system, the State is unable to obtain the
accused or the necessary evidence and testimony or otherwise to carry out its proceedings.
Article 18: (p. 646 Supp) Preliminary Rulings Regarding Admissibility
1. Upon ruling re: commencement of investigation, the prosecutor shall notify all States
Parties and those States which would normally exercise jurisdiction over the crimes
concerned.
2. Within one month of the notice, a state may inform the Court that it is investigating or has
investigated its nationals or others within its jurisdiction with respect to crimes related to the
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information provided in the notification to States. At the request of that state, the prosecutor
shall defer to the state’s investigation unless the Pre-Trial decides to authorize the
investigation.
3. The prosecutor’s deferral to a State’s investigation shall be open to review by the
Prosecutor six months after the date of deferral or at any time when there has been a
significant change of circumstances based on the State’s unwillingness or inability genuinely
to carry out the investigation.
4. The state concerned or the prosecutor may appeal to the Appeals Chamber against a
ruling of the Pre-Trial Chamber.
Article 124: (p. 672 Supp) Transitional Provision; A state, on becoming a party to this Statute, may
declare that for a period of seven years after the entry into force of this Statute for the State
concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes
referred to in Article 8 (war crimes) when a crime is alleged to have been committed by its
nationals or on its territory.
III. War & Peace
Intro:
• Traditionally, international law did not ban war, regardless of cause. IL was to confine and regulate the
effects of war. Assumed that states can use force. Discussion on how to limit the suffering caused.
• War is a particular legal category: state of war is a legal state IL has focused on use of force. These two
mean different things. For war, you need a declaration of war. UN charter doesn’t distinguish war and
declared war.
Pre-UN Efforts to Discourage or Outlaw War: (p. 926)
1. Hague Convention II (1907) – Narrow exception but begins the process that recourse to aggression is
limited; was not applicable when the debtor state refused or neglects to reply to an offer of arbitration, or,
after accepting the offer, prevented any compromise from being agreed on, or after the arbitration, failed to
submit to the award; WEAK
2. The League of Nations (1919) – (p. 394 Supp) Intl. Peace Conference of Paris in 1919; goals was to
promote intl. cooperation and achieve intl. peace and security; disarmament, peaceful dispute resolution,
outlaw war, independence of all members, sanctions; if a member of the league results to war, it is ipso
facto declaring war against all other members; notable failures because no one stepped up to enforce it.
Collective control on the use of force; STRONGER BUT STILL WEAK; Article XVI provided for
‘immediate severance of all trade or financial relations, the prohibition of all intercourse between the ir
nationals and the nationals of the covenant-breaking state, and the prevention of all financial, commercial,
or peronal intercourse between the nationals of the covenant-breaking state and the nationals of any other
state, whether a member of the league or not for members who committed acts of war against other
members
3. General Treaty for the Ban of War/ Kellogg-Briand Pact of 1928 – (p. 929) condemnation of war;
sought to ban war in its entirety; utopian vision. Condemns war as an instrument of national policy.
Response to WWI; STRONGER STILL AS IT IS A MORE ABSOLUTE BAN; ‘war’ used rather than ‘use
of force’; is still in force with more than 70 state parties
Judgment of the Intl. Military Tribunal Nuremberg, 1946: 930
Defendants charged with planning and waging aggressive wars; war is evil; it is the ultimate intl. crime; seizure of
Austria and Czechoslovakia unlawful; war against Poland; aggression of NAZI govt.; To initiate a war of
aggression is not only an international crime, it is the supreme international crime differing only from other war
crimes in that it contains within itself the accumulated evil of the whole.
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United Nations Charter: (p. 1 Supp); nations are unwilling to entrust full authority over war and peace to the UN
because:
1) the continuing struggle between the conflicting demands of national sovereignty and intl. order
expressed in claims and limitations of the national right of self-defense
2) the development of means of destruction so swift and devastating that the traditional time lag between
the development of an armed attack and the organization of defense has become largely obsolete
3) the enormously increased importance of political and ideological warfare, which has created new forms
of “indirect” aggression, not amenable to the established criteria and definitions of aggression;
Article 1: (p. 1 Supp) The principal purpose of the United Nations is “to maintain international
peace and security, and to that end: to take effective collective measures for the prevention and
removal of threats to the peace, and for the suppression of acts of aggression or other breaches of
the peace, and to bring about by peaceful means, and in conformity with the principles of justice
and international law, adjustment or settlement of international disputes or situations which might
lead to the breach of the peace
- During the Cold War it was ineffective cause of the veto power of the 5 head members,
one of whom was USSR; end of the Cold War has revitalized the Security Council’s role;
unlike the League’s charter binding only members, the UN’s charter is binding to all
universally
Article 2 (3): Peaceful Dispute Settlement (p. 2 Supp) All members shall settle their int’l disputes
by peaceful means in such a manner that int’l peace and security, and justice, are not endangered.
Article 2 (4): Prohibition on the Use of Force (p. 2 Supp) All members shall refrain in their
international relations from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the purposes of the UN.
• Aggression v. Armed Attack: Aggression is at the higher level of culpability.
• Threat of force doesn’t prohibit economic or political pressure. Confined to military force
or threat, ie use of armed force by A against B, or C defending B, if not, then breach of Art.
4. “or in any other manner….”:
• Different concepts embrace a wide range of possible meanings and their application to
diverse circumstances.
• The Charter prescribes international norms outlawing the threat or use of force, the
principal norms on which the new world order stands, and not universally recognized as jus
cogens.
Article 2 (6): Effect on Non-Members (p. 2 Supp) The Organization shall ensure that states which
are not members of the UN act in accordance with these principles so far as may be necessary for
the maintenance of peace and security. It is commonly accepted that in substance Article 2(4) has
become a principle of customary law binding on all states, and has acquired the character of jus
cogens.
Defining Aggression –
- U.S. says: Any definition of aggression is a trap for the innocent and an invitation to the guilty.
- This position prevailed at the San Francisco Conference, and the charter adopted a system whereby the
appropriate UN organ, in the first instance the Security Council, would determine on a case-by case basis
whether aggression has taken place.
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- Difference are primarily one of objectives; they are essentially of a political and ideological, not of a
logical, character
Resolution on the Definition of Aggression– p. 409 Supp/943; adopted in 1974 by consensus (so no vote req’d)
Article I: (p. 410 Supp) Definition: Aggression is the use of armed force by a State against the
sovereignty, territorial integrity or political independence of another State, or in any other manner
inconsistent with the Charter of the United Nations, as set out in this Definition. Explanatory note:
In this Definition the term "State":
(a) Is used without prejudice to questions of recognition or to whether a State is a member of
the United Nations;
(b) Includes the concept of a "group of States" where appropriate.
Article 2: First Use of Force: The First use of armed force by a State in contravention of the Charter
shall constitute prima facie evidence of an act of aggression although the Security Council may, in
conformity with the Charter, conclude that a determination that an act of aggression has been
committed would not be justified in the light of other relevant circumstances, including the fact that
the acts concerned or their consequences are not of sufficient gravity.
Article 3: Acts of Aggression: Any of the following acts, regardless of a declaration of war, shall,
subject to and in accordance with the provisions of article 2, qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State of the territory of another State, or
any military occupation, however temporary, resulting from such invasion or attack, or any
annexation by the use of force of the territory of another State or part thereof,
(b) Bombardment by the armed forces of a State against the territory of another State or the
use of any weapons by a State against the territory of another State;
(c) The blockade of the ports or coasts of a State by the armed forces of another State;
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air
fleets of another State; another states military
(e) The use of armed forces of one State which are within the territory of another State with
the agreement of the receiving State, in contravention of the conditions provided for in the
agreement or any extension of their presence in such territory beyond the termination of the
agreement;
(f) The action of a State in allowing its territory, which it has placed at the disposal of
another State, to be used by that other State for perpetrating an act of aggression against a
third State;
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries,
which carry out acts of armed force against another State of such gravity as to amount to the
acts listed above, or its substantial involvement therein.
Article 4: Above list is not exhaustive: The acts enumerated above are not exhaustive and the
Security Council may determine that other acts constitute aggression under the provisions of the
Charter.
Article 5: What it all Means:
1. No consideration of whatever nature, whether political, economic, military or otherwise, may
serve as a justification for aggression.
2. A war of aggression is a crime against international peace. Aggression gives rise to international
responsibility.
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3. No territorial acquisition or special advantage resulting from aggression is or shall be recognized
as lawful.
Article 6: Scope of Charter Unaffected by the Above: Nothing in this Definition shall be construed
as in any way enlarging or diminishing the scope of the Charter, including its provisions concerning
cases in which the use of force is lawful.
Article 7: Doesn’t Limit Self-Determination: Nothing in this Definition, and in particular article 3,
could in any way prejudice the right to self-determination, freedom and independence, as derived
from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on
Principles of International Law concerning Friendly Relations and Cooperation among States in
accordance with the Charter of the United Nations, particularly peoples under colonial and racist
regimes or other forms of alien domination: nor the right of these peoples to struggle to that end and
to seek and receive support, in accordance with the principles of the Charter and in conformity with
the above-mentioned Declaration.
Article 8: All of the above interrelated: In their interpretation and application the above provisions
are interrelated and each provision should be construed in the context of the other provisions
Intervention: a state can intervene illegally but lower culpability than aggression. Lower level of concern than
aggression. Does not give rise to use self defense in response to intervention. See Nicaragua Case.
Military and Paramilitary Activities in and against Nicaragua (US v. Nica.) 1986: 955
US was claiming it was acting in self-defense on behalf of El Salvador; a “collective self-defense”; Honduras,
Costa Rica, and El Salvador all neighbored Nicaragua and over many years it had troops in those nations; the US
acting under a notion of “collective self-defense” aided the contras in resisting this military force; can only respond
with self-defense if the state is a victim of an armed attack; but what is an armed attack? Sending troops, armed
bands, groups, irregulars, mercenaries, etc; is aiding a military force in another country an armed attack? No but it
is a violation and thus unlawful but it’s less than the direct armed attack; the argument for “collective self-defense”
is utterly rejected by the court; is the action of self-defense both necessary and proportional? In this case the court
says the US’s action is not necessary because it came after the main offensive occurred and any further action
would be useless; the only thing Nicaragua did was funnel arms into El Salvador and the US’s response was
certainly not proportional
• If you’re using force in collective self-defense, the victim state itself has to perceive itself as attacked & must
request assistance.
• Armed attack is the trigger for using force in self-defense
• Armed attack must be on a big enough scale, not frontier incident. Providing weapons itself isn’t good
enough
• Armed attack is different from aggression. To warrant self-defense, use of force has to rise to the level of
armed attack.
• To invoke Art. 51, you have to report it first. Does not preclude UN role. Reporting requirement is there
to keep the UN in the loop and involved to formulate resolution.
- Customary Limitations: Even if you meet all the requirements, the force must be necessary and
proportional. To try to constrain and limit force and to limit escalation. Caroline Case: classic case re:
self-defense: Need is instant and overwhelming. Not a war of choice.
Justifications for the use of force despite 2(4) and Article 51: all must be necessary/imminent & proportional
1. Waiver/Invitation, especially in civil wars
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2. Humanitarian intervention of either: a) a state abusing it’s own nationals; or b) of a state abusing someone else’s
nationals
3. Self Defense as recognized by Article 51 (if armed attack (military), individual v. collective, anticipatory
(Caroline Case – Brits invade NY), must be facing big danger)
Article 51: (p. 11 Supp) Self Defense Exception: Takes preexisting customary international law
and codifies it. Right to use force in self defense predates any statutory language. Underlying right
but only if armed attack occurs and until the Security Council has taken measures to try to restore
international peace and security. Can’t be ongoing. Limited and circumscribed. Must report it the
UN.
• Dual concepts of individual and collective self-defense.
• Broad ban on unilateral use of force today, with 2 exceptions (black letter law)
•The problem is there is no bright-line rule; the issue of use of force beyond that
permitted in Article 51 is controversial and complicated; some will say it’s ok in
furtherance of democracy; others will say it’s ok as long as it does not threaten the minimum
level of order
Notion of Expanding Self-Defense: Anticipatory Self-Defense
• Anticipatory Self-Defense – invading another country when armed attack is imminent; highly
controversial; stick to Article 51 with a possible exception for an immediate definite impending attack; few
accept this principle though (p. 971)
• Interceptive Self-Defense - Attack isn’t even imminent but you see it coming. Might pose a threat. None
of this argument is accepted (p. 971)
• Middle position: Imminent attack.
• European attitude: self defense is justifiable only if attacked.
• Protection of nationals and rescue of hostages; when such rules are being used by the Western States the
rules must also apply to the intl. community as a whole; but this has not been accepted (p. 973)
Use of Force for Benign Purposes: As a matter of IL law, it’s not acceptable practice, unless it’s within the 2
exceptions.
1. Humanitarian Intervention: Strongest claim to allow an exception to the prohibition of armed force is use
of force to save lives of innocent human beings threatened by massacres, atrocities, widespread brutality,
destruction, etc; renunciation of armed force could never have been meant to prevent it for humanitarian
reasons when all other remedies have been exhausted; claim of humanitarian intent was used to justify
Vietnam’s entrance into Cambodia; Kofi Annan asks many questions regarding the use of force in Kosovo
and Rwanda; should we just stand by and watch the atrocity or should we violate intl. law to stop it? Must
have a bright-line rule that can withstand abuse and not be used for the personal agendas of a state; it’s a
way to promote customary intl. norms;
2. Intervention For Democracy: still a tough debate (p. 976); No legally accepted exception here. Just
scholars talking
a) The Reagan Doctrine – asserting the right of the U.S. (or any other state) to intervene by force to
defend, maintain, restore or impose democratic gov’t
b) The Brezhnev Doctrine – the Reagan doctrine’s counterpart from the Soviet Union
•The black letter int’l law = use of force in humanitarian law that is neither in self defense nor unauthorized by UN
is illegal. There is however emerging arguments to allow for certain humanitarian violations. Humanitarian
intervention authorized by UN is legal.
Criterion for Humanitarian Intervention: on top of UN authorization
1. Grave violation of human rights
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2. No other means to rectify
3. Should be supported by those for whom it is carried out
4. Full compliance with the laws of war
5. Should cause less harm than that already being committed
6. Should withdraw when the objective of terminating the violations is achieved
Kosovo Intervention: 997
Bloody ethnic conflicts in former Yugoslavia; a decade of efforts to stop it; use of force in 1999 to stop it after all
other means exhausted; multinational participation; but Sec. Council did not confer authorization in advance; as a
matter of IL, the war was illegal because it didn’t get authorization. This ‘unlawful but legitimate’ argument also
put forth for Iraq.
Collective Use of Force: (p. 1006)
If the Sec. Council finds a situation constitutes a threat to the peace, the range of measures the Council can
take to deal with that situation:
UN Charter Article 41 p. 10 Supp; enumerates what measures the Security Council can take; may
include complete or partial interruption of economic relations and of rail, sear, air, postal,
telegraphic, radio, and other means of communication, and the severance of diplomatic relations
The UN can also call upon the parties to apply provisional measures as deemed necessary. Some of the
measures are designed to be less harsh/severe as force. If the measures are inadequate then what can the
UN do? Sec. Council claims that the authorization of use of force must be explicit. (One of the only 2
instances when the UN could take action during the Cold War was in S. Africa with Apartheid)
The Law of War: International Humanitarian Law or Law of War (IHL) (p. 1054/421 Supp)
•Much of the law of war was codified at the Hague Peace Conferences of 1899 and 1907,then strengthened
after the World Wars – notably through the four Geneva Conventions (GCs)of 1949 – an in 1977 with two
additional protocols to the 1949 GCs. These treaties have all received widespread multilateral adherence,
and in most aspects – with some notable qualifications – they reflect contemporary customary int’l law. As
of 2000, all 189 members of the UN as well as non-member Switzerland were parties to the 4 GCs, making
them among the most widely ratified of int’l treaties; applies even if states aren’t parties to a treaty, they are
still bound; older than human rights law
Geneva Conventions (p. 426 Supp)
First Geneva Convention (p. 426 Supp) "for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field" (first adopted in 1864, last revision in 1949)
Second Geneva Convention (p. 429 Supp) "for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea" (first adopted in 1949, successor of the 1907 Hague
Convention X)
Third Geneva Convention (p. 434 Supp)"relative to the Treatment of Prisoners of War" (first adopted in
1929, last revision in 1949)
Fourth Geneva Convention (p. 439 Supp) "relative to the Protection of Civilian Persons in Time of War"
(first adopted in 1949, based on parts of the 1907 Hague Convention IV) : most important; comesinto play
during armed conflict when civilians are in the hands of a party of which they are not a ntation; prohibits
violence to life and person and allows no distiction based on race, religioin, or political opinion.
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In addition, there are two additional protocols to the Geneva Convention:
Protocol I (1977): (p. 441 Supp) Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts; elaborates on the conduct of war.
Prohibits indiscriminate attacks. Broader protection available. Prohibits reprisals. Extends protection to war
for self-determination and liberation; much stronger protection afforded to international war rather than
internal war.
Protocol II (1977): (p. 455 Supp) Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of Non-International Armed ConflictsU; extends greater protection to
civilians and combatants in internal fighting but only where the government is fighting against a wellorganized group who controls a part of territory. You have to distinguish civilian and military targets and
only military targets are lawfully subject to attack. Civilians and objects are never to be made a target of
attack.
Note: #1-#3 only apply to international war and occupation; but Common Article does afford
protection to internal war.
- jus ad bellum: are a set of criteria that are consulted before engaging in war, in order to determine whether
entering into war is justifiable.
• jus in bello: The laws of war, which define the conduct and responsibilities of belligerent nations, neutral
nations and individuals while engaged in warfare, in relation to each other and to protected persons, usually
meaning civilians.
• Applies to all parties whether the underlying cause is just or unjust.
• US has ratified the four conventions of 1949 but not the 2 protocols.
• Collateral Damage is lawful where civilians are killed accidentally after targeting military targets. As a
matter of targeting you can’t target civilian persons or objects. Any collateral damage isn’t allowed.
• Key theme of HL: choice of weapons/means and methods of warfare is limited in achieving military
objective. Unnecessary losses are prohibited. No indiscriminate targeting. exp. Cluster bomb.
• Captured combatants have protection: no torture, no coercion, just minimum information. Can be tried
but same procedure you would use against your soldier. Civilians also have protection. Provide for basic
needs to provide with relief.
• Protecting women in armed conflict: Rape is a war crime and crime against humanity and genocide.
Sexual based crimes. Sexual slavery; prostitution.
Regulation of Weapons:
• Regulation of weapons come under conduct of war (as does treatment of prisoners, and injured
participants, treatment of enemy nationals and their property, and protection of nonmilitary ships);
deviations from the laws of war the jus in bello were violations of intl. law; with the emergence of lethal
and non-lethal technology rules have had to change; there are codified treaties in addition to the customary
intl. law; there are new demands on the laws of war; attempted to eliminate weapons that cause
unnecessary suffering
• Bullets, poisons, gases, and aerial bombardment was what was being limited in the past two centuries;
from mustard gas to dum-dum bullets to nuclear weapons; Must protect civilian population; Protocol I is a
modern version of Martens Clause = civilians and combatants remain protected under intl. law
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Landmines Convention – p. 513 Supp/1058
Intl. ban on the use, production, stockpiling and sale of mines; calls for the destruction of all mines; parties must
inform UN of their measures to follow this; US has not yet signed or ratified this ban; there has been a great
decline in landmine production, sales, and use
Treatment of POWs and the sick and wounded on Land and Sea p. 1064
Emphasized in the 2nd half of 19th century; 3rd Geneva Convention is the authoritative statement concerning POWs;
prisoners are not required to give a lot of info; not to be tortured and must be able to retain his personal effect; the
work that the prisoner does cannot be inherently dangerous, humiliating, or directly connected with the operations
of the war; the prisoner must be permitted contact with his family and have correspondence privileges; there must
be a system for registering complaints and it must be used; there are penal and disciplinary sanction prescribed in
the Convention
Sexual Violence in Wartime p. 1069
Rape of women by occupying forces is a perennial atrocity; forced enrollment into brothels in Korea and Japan in
WWII
4th Convention, Article 27 – women shall be especially protected against any attack on their honor, in
particular against rape, enforced prostitution, or any form of indecent assault
Protocol II, Article 4(2)(e) – outrages upon personal dignity, in particular humiliating and degrading
treatment, rape, enforced prostitution and any form of indecent assault are prohibited at any time and in any
place whatsoever
Charter of the UN, Chapter VII – p. 9 Supp
• Threat to the peace to trigger Chapter 7, it has to be a threat to international peace.
• Breach of peace: found in only few instance; ie Korean, Falklands, Iran-Iraq, Iraq invasion of Kuwait.
• Once SC determines that it’s in a Chapter 7 situation, it has 2 levels of action - Non force and force.
Article 39 - The Security Council shall determine the existence of any threat to the peace, breach of the
peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in
accordance with Articles 41 and 42, to maintain or restore international peace and security.
Article 40 - In order to prevent an aggravation of the situation, the Security Council may, before making
the recommendations or deciding upon the measures provided for in Article 39, call upon the parties
concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional
measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security
Council shall duly take account of failure to comply with such provisional measures.
Article 41 - The Security Council may decide what measures not involving the use of armed force are to be
employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply
such measures. These may include complete or partial interruption of economic relations and of rail, sea,
air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic
relations. (if Article 40 doesn’t work)
Article 42 - Should the Security Council consider that measures provided for in Article 41 would be
inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be
necessary to maintain or restore international peace and security. Such action may include demonstrations,
blockade, and other operations by air, sea, or land forces of Members of the United Nations. The Security
Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression
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and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41
and 42, to maintain or restore international peace and security. (if Article 41 doesn’t work)
• Taken together, they are meant to be a collective way to stand up to aggression.
Peacekeeping: completely different category. SC and GA can be involved in the authorization of peacekeeping
forces. Peacekeepers can only use arms in self defense. Theoretically different from Chapter 7. No specific
provision for peacekeeping forces.
IRAQ
660: calls for immediate withdrawal.
Security Council Resolutions:
661 – sanctions by all states (even non-members) upon Iraq; only medical and humanitarian needs;
and verify their cargoes and destinations and to ensure compliance of 661.
666: to ensure that permissible food shipments went to those in need.
678 – Iraq refused to comply with Resolution 660; this resolution gave Iraq and ultimatum stating that if it
did not withdraw from Kuwait then the UN member states are authorized to use whatever means to restore
intl. peace and security; this resolution also calls for all states to provide support; 678: all necessary means
to uphold. Deadline imposed. Authorization for action under art. 42 after the deadline.
687: comprehensive settlement.
• Iraq did not withdraw and air strikes began; the Sec. Council in this case actually did what it was designed to do
and did it well.
Bennoune’s View on the Legality of the War on Iraq:
Sovereignty v. Self-Determination. Double edge of sovereignty: erosion of sovereignty is not necessarily
always good for human rights, exp. Iraq sanctions; Paradox: S shielded Iraq from human rights abuses; but
erosion of S also hurt Iraqi citizens.
• Did Resolution 1441 give authorization for the War in Iraq? No, the US wanted language incorporated
into 1441 that would authorize use of force but it was not put in.
- Argument in Favor of Iraq War: Iraq was in breach of its obligations under the cease fire from the first
war and thus invalidated the cease fire. However the terms of the cease fire do not expressly state that a
breach of the terms invalidates the cease fire and allows for further use of force.
• US/UK action in April of 2003 is illegal because it does not fit in under self-defense exception or under
humanitarian justification and the UN Sec. Gen. stated that an attack of such kind is a violation of the UN
charter.
• This seems more like a war of aggression. Such a war is the gravest of violations of intl. law. Aggression
is the use of armed force by a state against the sovereignty of another state or in any other manner against
the Charter of the UN. Two of the leading members of the intl. community have violated the Charter by
committing this aggression.
• The former Iraqi govt. committed gross violations of intl. law, humanitarian law, (even genocide of the
Kurds); but the lawlessness of one kind should not be met by lawlessness of another kind.
Taft Article: Justifying us War in Iraq. Implied authorization derived from previous resolutions.
Frank Article: his view of Taft’s argument re: past resolutions. He doesn’t agree with Taft. SC must make explicit
and express authorization. Too much time has passed. Taft put forward a de minimis argument. His policy concern
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is implication of Article 2(4). Concern that the whole system that governs the use of force will be weakened. Basis
for the war not legally justifiable.
Dispute Settlement
• Fundamental Obligation by states to settle disputes by Peaceful Means, done in a way not to jeopardize
peace and security and do justice. Overwhelming emphasis on peaceful resolution of disputes.
• Judicial Settlement: many international courts and of wide range of subjects these days. Now,
proliferation of tribunals. Regional and subjects courts. No clear hierarchical relations between these
courts.
UN Charter Article 2, Paragraph 3: Dispute settlement: “All members shall settle their international disputes by
peaceful means in such a manner that international peace and security, and justice, are not endangered.”
Meaning of Dispute – has particular meaning, not just any difference in views of states
• Requires a degree of specificity and contestation; Legal disagreement.
• It’s not a dispute if the resolution does not effect relations between the states;
• ICJ definition: disagreement on a point of law or fact, a conflict of legal views or interests between
two persons. The matter has to be ripe for adjudication.
• The Court’s judgment must have some practical consequences in the sense that it can affect existing legal
rights or obligations thus removing uncertainty from their legal relations.
Dispute Settlement:
a) Conciliation – Article 56 a 3rd party comes in and tries to resolve the issue; more proactive than mediation; non-adjudicatory
b) Mediation – Article 55 some as conciliation but less pro-active 3rd party; nonadjudicatory
c) Negotiation – Article 54 the two sides site down face to face and try to compromise their
way out of it; essentially involved in all of these methods as agreement will have to be
reached for all of them; best use is for strong states against a weak state; non-adjudicatory
d) Inquiry – 3rd party investigates the disputed facts and gives a report of what actually
occurred and sometimes adds a recommendation; non-adjudicatory
e) Good Offices - Article 55 same as an inquiry but under the auspices of the UN Secretary
General or some other int’l big shot; non-adjudicatory
f) Arbitration – Article 58 a form of mediation but the holdings are binding; different from
resorting to court because the parties can choose the applicable law and the arbitrators; semiadjudicatory
g) Judicial Settlement – the most preeminent institution is the Int’l Court of Justice (ICJ);
best use is for small states with a strong case; expensive in terms of money and expertise;
adjudicatory
Good Offices, Inquiry, Mediation, Conciliation – all entail 3rd party involvement in seeking a resolution of the
dispute; the two disputing parties agree to have a 3rd party hear it, but are not bound by the decision of the 3rd party;
Mediators, conciliators or other third-party facilitators may be individuals, committees, or institutional bodies.
The International Court of Justice (ICJ) – Charter of the UN - - p. 27 Supp
• A state can designate an ad hoc judge in order to prevent bias against that state
• ICJ: the most important international law court. Preeminent body. Has a full docket. It faces a range of
problems: perennial non appearing defendant, (Famous noncompliance: Iran in hostage case; US in the
Nicaragua case; Iceland)
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• Traditional default rules can’t apply; problem of ICJ is getting states to comply. Almost all complied in
ICJ’s predecessors.
• In theory, the SC has the power to enforce the decisions of the ICJ.
• Opportunities for the court, especially for developing countries, but there are challenges.
Logistics of the Court: successor to PCIJ; similar in structure; ICJ created by the UN charter to be
the principal judicial organ; when a state ratifies UN Charter, it accepts ICJ Statute; located in the
Hague, Netherlands; Judges are selected by complex process. These are experts and by and large
they function as such. They are nominated by a complicated process and elected by SC and general
assembly. A lot of political in-fighting. Judges aren’t supposed to represent their country of origin;
15 judges; 5 westerner, 3 African and 3 Asians, 2 Eastern European, 2 Latin America
- Small chambers: 3 justices, to develop expertise, on a given case.
- Court issues single judgments but may append concurrences and dissents
- English and French are predominant languages
- Judicial practice in global setting. Practice of recusal: they can participate even with same
nationality defendant.
- Has held that the principles of int’l law outlawing acts of aggression are obligations erga
omnes, to the int’l community as a whole
2 kinds of jurisdiction: either contentious cases or issue advisory opinions; only states can be
parties to cases, not international organizations or private persons; jurisdiction is based on the
consent of the parties; consent and reciprocity are the bedrock principles of contentious jurisdiction;
Organization of the Statute:
Article 1
Chapter I: Organization of the Court (Articles 2 - 33)
Chapter II: Competence of the Court (Articles 34 - 38)
Chapter III: Procedure (Articles 39 - 64)
Chapter IV: Advisory Opinions (Articles 65 - 68)
Chapter V: Amendment (Articles 69 & 70)
Article 36: (p. 33 Supp) Basis of Jurisdiction
36(1): allows for treaty or agreement. Parties have agreed to jurisdiction on a specific matter.
36(2): compulsory jurisdiction. A state has to make a declaration (optional clause declaration) to
recognize the competence of the court. They can be brought into ICJ without any particular
agreement, but only if a state is brought in by another state who agreed to the same obligations=
reciprocity. Under Article 36(2) states can declare that they recognize as ipso facto and w/o special
agreement the jurisdiction to the Court in all legal disputes; (examples of compulsory jurisdiction)
Usually broad language. Jurisdiction concerning:
1. the interpretation of a treaty;
2. any question of international law;
3. the existence of any fact which, if established, would constitute a breach of an
international obligation;
4. the nature or extent of the reparation to be made for the breach of an international
obligation.
• A case brought under a treaty clause does not require a special agreement; it is begun by a unilateral
application.
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• Some general multilateral conventions provide for compulsory jurisdiction through optional protocols.
Other conventions have jurisdictional clauses that allow any party to bring the dispute to the Court.
• A few treaties give the Court appellate jurisdiction that provides for appeals to the Court.
• Many bilateral treaties include provisions for compulsory jurisdiction of disputes relating to the
interpretation and application of the Treaty.
• If jurisdictional issue is raised, the court will hold a meeting.
- some states withdraw if the court decides unfavorably to them.
- some declarations are made terminable after notice and some are open-ended.
- if no notice is identified, a reasonable time is enforced: Nicaragua
Reservations: to a declaration
- Not expressly provided for in the Statute but allowed. Exempting certain kinds of disputes.
- Court has been flexible because it wants wide participation
- States have to be careful about making reservations because they are reciprocal and other state can use it
against them (i.e. Domestic jurisdiction); France and Norway: self-judging reservation which basically
nullifies the court’s jurisdiction.
36(5): permanent court of international justice jurisdiction; Declarations made under Article 36 of
the Statute of the Permanent Court of International Justice and which are still in force shall be
deemed, as between the parties to the present Statute, to be acceptances of the compulsory
jurisdiction of the International Court of Justice for the period which they still have to run and in
accordance with their terms. (This was central to Nicaragua Case).
Forum Prorogatum: takes place if the parties to a dispute, after the initiation of proceedings consent to the
jurisdiction of the ICJ; without this consent, the Court would not be in the position to exercise jurisdiction; A state
can also invoke by pleading to the merits of a claim without raising any objections to jurisdiction. In this case, if
the D loses on the merits, the court will exercise jurisdiction.Exceptional situation in 36(1).
Nuclear Tests Cases (Australia v. France and New Zealand v. France) ICJ 1974: 865
France holds atmospheric nuclear tests in the South Pacific; dispute arises between France and the two nations; France says
effect is negligible; Australia disputes it; this court cannot opine upon the facts; France has agreed prior to this case to stop
the testing above ground and is now testing below ground = P lacks standing; Australia made no attempt to claim damages
and totally should have; this court for such reasons finds Australia’s claim to have no object; even though France already
stated intent to stop testing, a judgment from this court might be of use but no further judicial action required;
• The court’s action, based on “inherent jurisdiction,” to authorize it to decide that France is now under an obligation to
terminate atmospheric nuclear tests in the South Pacific Ocean.
RULE: A clear, unilateral statement made to the international community as a whole to terminate nuclear testing
constitutes an undertaking possessing legal effect. No question of damages arises since the objective of the applicants was
to seek protection against such further testing.
• Thus, a State may create an international legal obligation as a purely unilateral matter.
Case concerning US Diplomatic Consular Staff in Tehran (USA v. Iran) ICJ 1979: 868
Hostages taken at US embassy in Iran; US Says Iran violated its intl. legal obligations by allowing this hostage taking and
says that Iran must secure their release immediately and pay the US reparations and prosecute the perpetrators; release the
hostages, clear the premises, protect the Americans there, not try any American, and take no action prejudicially against the
US; Iran says what happened should remain within the sovereignty of Iran because of the then occurring revolution and the
hostage taking is just one event in a long chain of other events; The court held that it could not decline to take cognizance of
one aspect of a dispute merely because that dispute had other aspects; US says the ICJ has jurisdiction; US also says Iran not
only allowed the hostage taking but supported it; ICJ rules in favor of US and orders release and security of all attached to the
embassy;
RULE:A dispute which concerns diplomatic and consular premises and personnel and involves the interpretation or
application of multilateral conventions codifying the international law governing diplomatic and consular relations is
one which by its very nature falls within international jurisdiction. The non-appearance of one state concerned cannot by
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itself constitute an obstacle to the indication of provisional measures. The Secretary-General of the United Nations has
referred to these events as a "grave situation" posing a "serious threat to international peace and security." Iran (D) cannot fail
to recognize the imperative obligations concerning the privileges and immunities of consular officers and employees, and the
inviolability of consular premises and archives which have been codified in the Vienna Conventions of 1961 and 1963, to
which it is a party. The government of Iran (D) should immediately restore the premises of the United States Embassy to U.S.
(P) authorities and ensure the immediate release of all persons of U.S. (P) nationality held in the Embassy or elsewhere. US
unquestionably has IL on its side.
• The court also ruled that neither party should take any action to aggravate the tension between the two countries; Court was
willing to grant Provisional Measure due to irreparable harm and was pretty sure who would prevail.
Nicaragua v. US 1984: 880
Nicaragua filed application against US for military and paramilitary activities in and against Nicaragua; the US
was funding the Contras in Nicaragua; the court cannot hear this case because there is no declaration made but
Nicaragua makes an argument that they fit under Article 36(5) that the US made compulsory the jurisdiction; the
US argues against this because it says Nicaragua did not accept the same obligation as accorded by Article 36(2);
the US felt the ICJ was not the proper mediator and that the Sec. Council should have heard the case; that the ICJ
is a 3rd party; the ICJ says there is nothing that would lead them to such a conclusion and that it falls within the
function of the ICJ to hear this case; US also tries this “Schultz notification” saying that rather than wait for the ICJ
to hear the case in 6 months, the US will pull out now ; what about reciprocity? It did not apply to this unilateral
undertaking by the US; the Court overwhelmingly voted against the US arguments; an American judge voted in
favor of the US often alone; the ICJ was attempting to bolster it’s legitimacy; such a small country taking action
against the US why was it not put down? This was during the Cold War
- Shultz’s letter wanted immediate termination but the declaration stipulated 6 month notice.
RULE: Where a matter is before the Security Council, the International Court may consider the case as
well. The fact that a matter is before the Security Council should not prevent it from being dealt with by the Court.
Both proceedings can be pursued pari passu (equally; without preferential treatment). The court finds it has
jurisdiction over this matter.
• The U.S. raised five grounds of inadmissibility. All five were rejected by the court. The court also found there
was no indispensable parties rule in international law requiring the presence of any other third parties.
- Evidence in favor of Nicaragua acceptance: UN list of consenting states; intent and conduct, even though
ratification was never received; telegram sent as well. Nicaragua’s basis of jurisdiction was 36(5) PCIJ
jurisdiction.
- A lot of procedural problems with this case. Merit was on Nicaragua’s side.
Non-Appearance
• The US appeared against Nicaragua to contest jurisdiction and admissibility but withdrew after the court
found jurisdiction. The statute of the court does not provide for default judgment.
• Resolution adopted by the institute de Droit International: Notwithstanding the non-appearance of a state
before the court in proceedings to which it is a party, that state is, by virtue of the statute, bound by any
decision of the court in that case, whether on jurisdiction, admissibility, or the merits; A state’s nonappearance before the court is in itself no obstacle to the exercise by the Court of its functions under Article
41 of the statute.
Article 53: (p. 36 Supp); Non-Appearnce; In the event that a party fails to appear or does not defend, the
Statute requires the Court to satisfy itself that it has jurisdiction and, if so, that the claim of the applicant is
well founded in fact and law.
Article 53: (p. 36 Supp); Non-Appearnce; In the event that a party fails to appear or does not defend, the
Statute requires the Court to satisfy itself that it has jurisdiction and, if so, that the claim of the applicant is
well founded in fact and law.
Intervention and other 3rd Party Issues
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Right to intervene if the state is a party to the treaty; can also petition the ICJ to intervene in the case if it
doesn’t already have a right; Article 62 and 63 of the Statute.
Article 61: p. 37 Supp
1. An application for revision of a judgment may be made only when it is based upon the discovery of
some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given,
unknown to the Court and also to the party claiming revision, always provided that such ignorance was
not due to negligence.
2. The proceedings for revision shall be opened by a judgment of the Court expressly recording the
existence of the new fact, recognizing that it has such a character as to lay the case open to revision, and
declaring the application admissible on this ground.
3. The Court may require previous compliance with the terms of the judgment before it admits
proceedings in revision.
4. The application for revision must be made at latest within six months of the discovery of the new fact.
5. No application for revision may be made after the lapse of ten years from the date of the judgment.
Article 62: p. 38 Supp
1. Should a state consider that it has an interest of a legal nature which may be
affected by the decision in the case, it may submit a request to the Court to be
permitted to intervene.
2. It shall be for the Court to decide upon this request.
Provisional Measures: now binding
Article 41: p. 35 Supp
1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional
measures which ought to be taken to preserve the respective rights of either party.
2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to
the Security Council
• Two criteria for provisional relief are urgency and irreparable injury;
• The Court’s provisional measures jurisprudence requires applicant to show a prima facie basis for
jurisdiction. Where jurisdiction cannot be established even prima facie, provisional measures will be
denied, no matter how urgent the matter or how serious the allegation of likely irreparable harm to
applicant.
Aegean Sea Continental Shelf Case (Greece v. Turkey) ICJ 1976 (Provisional Measure): 897
Greece protested Turkey exploring for oil; brought the case to the ICJ and Sec. Council at the same time; the court
held that Turkey was only doing a survey thus not irreparable
Counter-claims:
Article 80: of the rules of the court NOT THE STATUTE; provides for the filing of counter-claims, which
requires that a counter-claim be “directly connected with the subject-matter of the claim of the other party
and that it comes within the jurisdiction of the Court.”
• Applicant states will have to weigh the possibility of serious counter-claims entailing potentially
heavy liabilities as part of the risk of initiating litigation.
Advisory Opinions:
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Article 65: (p. 38 Supp) The court may give an advisory opinion on “any legal question” requested by a
body authorized by or in accordance with the U.N. Charter.
• General Assembly or the Security Council may request advisory opinions. In addition, other
organs of the UN may be so authorized by the General Assembly.
• A state may not request an advisory opinion. It may, however, it may ask an authorized IGO to
request one for them
• Although an advisory opinion has no binding effect in itself, some international agreements
provide that disputes relating to the interpretation and application of the agreement shall be
submitted to the Court for an opinion that will be accepted as binding by the parties to the dispute.
Western Sahara Case ICJ Advisory Opinion 1975: 905
What is the legal status of the Western Sahara Dessert? The important factor is whether or not the ICJ had the
jurisdiction to issue such an advisory opinion; strong objection by many of the states party to the discussion;
Morocco and Mauritania are the two disputing states; Morocco occupies the entire Western Sahara; the dispute
resolution in the case didn’t work; the court says it’s not impairing legal rights and it’s not binding thus it should
have jurisdiction to issue an opinion
Legality of the Threat or Use of Nuclear Weapons ICJ Advisory Opinion, 1996: 3 Criteria re: request for
advisory opinion.: 909
General Assembly and WHO asked the ICJ to issue an advisory opinion on this matter; the ICJ must limit who can
appear before it; the General Assembly says is it permitted to use nuclear weapons (a diff. question from is it
prohibited: Lotus principle); such questions have legal and political motivations; some states contested the
advisory opinion because of imputed political motives; but political motives don’t matter because as long as an
authorized UN body brings the claim, it’s lawful
• The court declined to issue an advisory opinion at the request of WHO because WHO did not satisfy all 3 criteria
needed in order to request an advisory opinion:
3 criteria:
1. The agency requesting the opinion must be duly authorized, under the Charter, to request opinions from the
Court;
2. The opinion requested must be on a legal question;
3. This question must be one arising with the scope and mandate of the activities of the requesting agency.
Should there be two bodies: One for advisory opinions and the other a strict court? No, there should be consistency
IV. Jurisdiction
Jurisdiction: Authority to affect legal interest in a particular situation over a particular person.
Three types:
1. legislative/proscriptive –
2. judicial/adjudication –
3. executive/enforcement –
- A lot of this is defined in national arena.
- International law of jurisdiction limits states and other international legal persons may not exceed in exercising
jurisdiction.
Comity: politeness between states; respecting the interests of other states.
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The Lotus Principle: At the International Court of Justice (ICJ) hearings in 1996 the UK argued that in
international law, if something is not actually forbidden, then it is permitted; so called because in the 1920’s a ship
of that name featured in a decision made by the ICJ's predecessor, the Permanent Court of International Justice.
• Classically understood it was the Lotus Principle; now the interests of states must be balanced with the interests
of other states. States now have to affirmatively to show a basis in jurisdiction before acting in a certain way.
• Under international law, the jurisdiction of a state depends on the interest that the state, in view of its nature and
purposes, may reasonably have in exercising the particular jurisdiction asserted and on the need to reconcile that
interest with the interests of other states in exercising jurisdiction.
Note: Jurisdiction and immunities are rights of states.
Bases of Jurisdiction – Criteria for determining Jurisdiction. Sovereignty is always in the background of
jurisdictional discussions; from the perspective of national courts asserting jurisdiction.
1. Territorial Principle – wholly or in substantial part takes place within its territory; includes conduct that
was abroad that affects in substantial part upon that territory where a particular crime/action takes place.
Primary basis of jurisdiction that a state exercise jurisdiction on its own territory. Most accepted basis of
jurisdiction. Requires that crime is committed within the territory.
2. Nationality Principle – jurisdiction over its national even if the activity and the person is abroad;
Blackmer. Asserting jurisdiction by nationality of the perpetrator. Second strongest basis. Based on the idea
that individuals owe allegiance to states to which they are nationals. (i.e. UK nationals enjoy sex trade in
Thailand; court may go after British nationals on the basis of their nationality) Dual citizenship: dual
allegiance.
3. Protective Principle – conduct that threatens existence or injures national interests; who decides it though?
Middle of the pack. Who’s going to decide whose national interests are being undermined.(i.e. Bin Laden
Case p. 1135 where embassies as important interests of the US were harmed; Eichman Case; people lying
to US consular officers, etc.)
4. Universality Principle – offenses that are crimes against the intl. community; newer and increasingly
accepted but still supplemental; some controversy. Middle of the pack. (i.e. Pinochet; Piracy) Understood
to apply to war crimes, torture, hijacking. You have to either try or extradite. Obligation ergo omnes. That
these crimes are so heinous that all states have a duty to prosecute. Concern re: bias in judicial system.
5. Passive Personality Principle – newer, weakest basis; Asserting jurisdiction by nationality of the victim.
Strongly asserted re: terrorism. Controversial because it can be exerted by powerful countries who will
have the ability to apprehend non-nationals. On the other hand, it’s important because no other state may
have any interest in prosecuting.
• Multiple jurisdictional bases may be used to get Jurisdiction and prosecute. (i.e. Eichman Case)
Hypo: Dr. No a Russian national tortures James Bond, a UK national, while interrogating Bond in Uruguay about
his work to prevent the smuggling of briefcase sized nuclear weapons into the US; following Bond’s escape Dr. No
pursues him and winds up in custody in Suriname; who can take jurisdiction? Strongest claim is Uruguay because
of the territorial principle; then Russia cause of nationality; third is UK because of passive personality principle
(victim is a national); fourth is US  protective principle claim because of the territory/national interests; last is
Suriname because of universal jurisdiction because of custody (torture); in actuality Uruguay wouldn’t assert
jurisdiction because they have/would get no money; Russia won’t want to take it; Suriname wouldn’t want to
prosecute Russian secret service man because of comity; UK or US would both take but remember double
jeopardy; Any of these countries can use universality if they have Dr. No.
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Adolf Eickmann (1136) was caught in Argentina and brought to Israel to face holocaust charges; the transfer was
unlawful; Argentina had jurisdiction, it was clandestine and the transfer was a violation of territorial sovereignty;
would set a dangerous precedent; Sec. Council ordered reparations; Israel had jurisdiction under universality and
passive personality but the latter is problematic because Israel didn’t exist during the holocaust; Germany could
have asserted jurisdiction based on nationality and territorial. Argentina could have asserted jurisdiction based on
universality principle. Other countries could have based on passive, ie Poland, Hungary, etc.
- Comity is compromised even in the presence of lawful basis.
Blackmer v. US US Sup. Ct.1932 (1111) - - Jurisdiction Based on Nationality of Natural Persons
Blackmer was held in contempt for ignoring subpoenas; he’s a US citizen living in Paris; the jurisdiction here
arises out of domestic law; its jurisdiction in personam
US v. Fawaz Yunis DC Circuit 1991: 1118 - - Jurisdiction Based on Nationality of the Victim (Passive
Personality Principle)
Yunis appeals to challenge his convictions of conspiracy, aircraft piracy, and hostage-taking that stem from the
hijacking of a Jordanian passenger plane in Lebanon; his motions challenging jurisdiction, illegal arrest, and
violations of the Posse Comitatus Act were all denied thus he appealed; Yunis and 4 others hijacked a plane; Yunis
was assumed the leader and lured into a trap and once in intl. waters was arrested by the FBI; universal principle
vs. the passive personal principle; states may prosecute offenders of certain crimes like terrorism, hijacking etc
even if there is no connection; hostage taking must be prosecuted no matter what
Convention on Intl. Civil Aviation – (p. 523 Supp) Convention on offences and certain other acts committed on
board aircraft
Convention for the Suppression of Unlawful Seizure of Aircraft – (p. 537 Supp) hijacking
Regina v. Bartle, Bow St. Stipendiary Magistrate and Commission of Police, Ex Parte Pinochet UK House of
Lords, 1999: 1139 - - Jurisdiction Based on Protection of Certain State, Universal, or other Interests
Pinochet is indicted for acts he committed in Chile; he had foreigners accused of crimes tortured; Spain requests
the extradition of this former Chilean leader (who had himself appointed as a Senator For Life just before stepping
down as Prez); the torture convention didn’t establish a new rule of intl. law; it’s a jus cogens rule; a state cannot
say that part of it’s official policy is torturing criminals and expect immunities; “there is no escape for torturers”;
(Pinochet syndrome): general jurisdiction so that the torturer was not safe wherever he went. The international
law prohibiting torture has the character of jus cogens or a peremptory norm. “Pinochet Syndrome”: using
universal jurisdiction to go after offending criminals.
Immunity From Jurisdiction: 1197
• Under IL, states and other international persons enjoy certain immunities from the exercise of jurisdiction.
In addition, such immunities may be granted by municipal law. Of course, when an immunity exists under
IL, its denial by municipal law may create a claim for violation of IL.
• Traditionally, primary consideration has been given to immunity from judicial and enforcement
jurisdiction.
• The main trend from the 19th century through the 20th and 21st centuries has been the gradual
displacement of the absolute theory of sovereign immunity with a restrictive view.
• Problems of jurisdictional immunities arise when an action is brought in the tribunals of one state against
another state or its instrumentalities or property.
• When such an action is brought, the first question that arises is whether the local tribunal has judicial
jurisdiction over the foreign state. This question is one of immunity from judicial jurisdiction. The second
question that arises is whether the forum has the authority to evaluate the foreign actor’s conduct under the
rules of law applicable to such conduct. This raises a question of immunity from legislative jurisdiction.
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The third question that arises is when a foreign state or its property is immune from enforcement measures.
This is a question of immunity from jurisdiction to enforce.
Sovereign Immunity: Jurisdictional Defense
1. Schooner Exchange v. McFaddon (US Supreme Court, 1812) - - The Classical View
a. Facts: US citizen attempts to claim title to armed national vessel of foreign country within US territorial
waters.
b. Rule & Reasoning: Sovereign immunity. Immunity of state from jurisdiction of courts from another
state is an undisputed principle of customary international law. Rooted in the perfect equality and
absolute independence of sovereigns. Sovereign states are equal actors in international arena, and general
international law requirement that state consent to any rule or application of law to its conduct, lead the
notion that one state is not subject to suit in courts of another.
2. Continuation of Absolute Theory of Sovereign Immunity
a. Berizzi Bros. Co. v. Pesaro (p. 608): Berizzi brings action against the steamship Persaro, which is owned and
operated by Italian government, for failure to deliver artificial silk from Italy to New York. Court dismisses
due to sovereign immunity.
3. Rise of Restrictive Theory of Sovereign Immunity
a. Problem: Sovereign immunity, based upon the absolute independence of sovereigns, directly conflicts with
another soveriegn’s “full and absolute territorial jurisdiction.” This is especially true since nations have
begun to “enter the marketplace.”
b. Tate Letter (Department of State, 1952): Acknowledged international trend from the absolute or classic
theory of sovereign immunity to restrictive theory of sovereign immunity. Under this new restrictive theory,
parties were not immunized when they acted like private parties, in particular by entering into commercial
transactions, they are amenable to suit in countries in which they act or where their acts have effect.
Alleviates some of the problems of absolute sovereign immunity, provides deprived private parties that have
dealt with foreign countries with legal recourse and prevents foreign states from utilizing unfair advantage in
competition with private enterprises. However, the Tate Letter did not and could not really succeed in
establishing a workable and effective law governing claims against foreign states - - didn’t define the
distinction between private and public state acts nor who should define them. Very often came down to the
nature of the activity (i.e. corporation issuing bonds v. government bonds).
i) Jure Imperii: public acts of a state (i.e. providing for national security, foreign policy, etc.)
(immunity still recognized here)
ii) Jure Gestonis: private acts of a state (i.e. commercial acts) (immunity no longer recognized here)
to protect private traders; the restrictive theory allows states to be brought before a court like
any other private actor
Foreign Sovereign Immunities Act (FSIA) 1976 to fix problems left by Tate Letter
1) FSIA § 1602 - Findings and Declaration of Purpose: Under international law, states are not immune
from jurisdiction of foreign courts insofar as their commercial activities are concerned, and their
commercial property may be levied upon for satisfaction of judgments rendered against them in
connection with their commercial activities.
2) FSIA § 1604 – General Rule: Foreign state is immune from jurisdiction, with exceptions.
3) FSIA § 1605-1607 (Esp. 1605(a)(2)): Exceptions to sovereign immunity, the most common of which is
the commercial activity exception; are the acts the type of actions by which a private party engages in
‘trade and traffic or commerce’?
4) Not a Perfect Remedy: Many courts have complained about the confusing structure of the Act using
such epithets as “statutory labyrinth”, “twisted exercise in statutory draftsmanship”, and “bizarre
structure”.
FSIA Does Not Apply If:
 § 1605 - - General exceptions
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

o It waives immunity explicitly or implicitly
o Commercial activity carried on in the U.S. or with a direct effect on the U.S.
o Property taken in violation of international law and that property is in the U.S. and/or that property
was taken by an agency or instrumentality of the foreign sovereign and that representative is
engaged in commercial activity in the U.S.
o If cause of action is immovable property within the U.S.
o Tort committed by foreign state within the U.S.
o Arbitration agreement could be executed in the U.S.
o Personal injury or death cause by torture, extra-judicial killing, aircraft sabotage, hostage taking or
assisting such acts if engaged in by an official of the state within the scope of his or her employment
§1606 - - Extent of Liablity
o If not entitled to immunity per 1605 or 1607, the foreign state is liable in the same manner and to
the same extent as a private individual including punitive damages if liable for state sponsored
torture, etc. (1605(a)(7) or in violation of the Trading With the Enemy Act.
§1607 - - Counterclaims
Counterclaim is arising out of the same subject matter/claim and does not exceed the value of the
sovereign’s claim, adjudication of the counterclaim can not be avoided via FSIA
Chuidian v. Philippine National Bank 9th Circ. 1990: 1270 - - Immunities of Representatives
Daza a member of the Presidential Commission on Good Govt. in the Philippines denied a letter of credit for
Chuidian who sued; is Daza immune from suit as a govt. official? Is suing Daza the equivalent of suing the
Philippines?
• Only way to find a basis for jurisdiction is by the Act. Chuidian’s suit against Daza for acts committed in his
official capacity must be analyzed under the framework of the Act.
• There is little practical difference between a suit against a state and a suit against an individual acting in
his official capacity.
Regina v. Bartle (Pinochet case) 1999: 1276 - - Heads and Former Heads of State
Ambassadors are immune while ambassador and after they resign as well; but there are different types of
immunities; ratione materiae is immunity to certain kinds of act on behalf of the state in his official capacity (like
an ambassador after resignation; official act); ratione personae is immunity of all acts, broad immunity, only
during office (like an ambassador during office); we need this immunity so that state actors can be free to function;
if a diplomat is subject to arrest every time they leave their country then they will be unable to do their job; (the
Chilean govt. attempted to strip Pinochet of his immunity but was not allowed for his health; but he continues to
give rallying speeches to the military
1. Pinochet as former head of state enjoys immunity ratione materiae in relation to acts done by him as head of
state as part of his official functions as head of state.
2. then, the question has to be answered is whether the alleged organization of state torture by Pinochet would
constitute an act committed by Pinochet as part of his official functions as head of state.
• Can it be said that the commission of a crime which is an international crime against humanity and jus
cogens is an act done in an official capacity on behalf of the state? Thus, torture is not an official act. But
the legal contradiction is the definition of torture, as a function of state. supplement: p. 202 art. 1 “inflicted
by public official. By definition, torture is an official act. So, Pinochet is found not to have immunity.
Downside: state immunity has problems but there for a reason. If you go too far, you run the risk of politicizing the
issue. Potentially difficult issues to think about.
Diplomatic Immunity: Diplos are immune from search, taxation, arrest, customs duty, detention, attacks on their
person and dignity; they and their home residences in the hosting state are inviolable – they can’t be infiltrated
without explicit permission from the diplo mission leader; embassies are also inviolable; No exceptions to the
inviolability of the mission, not even in cases of emergency (i.e. Iran Hostage Case); Political protest outside
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missions: diplomatic immunity v. freedom of speech = diplo wins, no demonstrations allowed within 100 feet of
diplo buildings/residences; Limitations – diplos are not immune from the jurisdiction of their home state; their
home state can choose to waive their immunity in the hosting state (they must do so explicitly); diplos must
observe the law where they are stationed and may not interfere with the function of their host governments; If diplo
breaches, they can be deemed a persona non grata and escorted out of the country; Receiving states must protect
diplo missions within their territory. For more info, see Articles 22 – 41 p. 577 Supp
The Blue List: the diplo list maintained by the Department of State; name on the list doesn’t necessarily mean that
the Executive has endowed you with diplo immunity
The White List: lists all employees of diplomatic missions; also maintained by the Department of State
Theoretical Bases for Diplomatic Immunity:
1. Extraterritorial Theory – says the premise of a mission is actually part of the sending state’s territory and
inviolable. (REJECTED). Host needs consent of the head of the mission.
2. Representative character – not their territory but it personifies/is a metaphor for the sending state
3. Functional necessity theory – (DOMINANT) what justifies DI, is that they are necessary for them to do
their job. If the diplo gets crazy, her home country should waive her immunity
• DI: facilitates the work of diplomats, in regards to pursuing peaceful resolution of disputes. Policy
motive is strong.
Vienna Convention on Diplomatic Relations – p. 574 Supp; basic text on diplomatic immunity; drafted by the ILJ
Article 32:
1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37
may be waived by the sending State.
2. Waiver must always be express.
3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction
under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.
4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held
to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall
be necessary.
Article 40:
1. If a diplomatic agent passes through or is in the territory of a third State, which has granted him a
passport visa if such visa was necessary, while proceeding to take up or to return to his post, or when
returning to his own country, the third State shall accord him inviolability and such other immunities as
may be required to ensure his transit or return. The same shall apply in the case of any members of his
family enjoying privileges or immunities who are accompanying the diplomatic agent, or traveling
separately to join him or to return to their country.
2. In circumstances similar to those specified in paragraph 1 of this Article, third States shall not hinder the
passage of members of the administrative and technical or service staff of a mission, and of members of
their families, through their territories.
3. Third States shall accord to official correspondence and other official communications in transit,
including messages in code or cipher, the same freedom and protection as is accorded by the receiving
State. They shall accord to diplomatic couriers, who have been granted a passport visa if such visa was
necessary, and diplomatic bags in transit the same inviolability and protection as the receiving State is
bound to accord.
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4. The obligations of third States under paragraphs 1, 2 and 3 of this Article shall also apply to the persons
mentioned respectively in those paragraphs, and to official communications and diplomatic bags, whose
presence in the territory of the third State is due to force majeure.
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